Revista ESASP - Revista Científica Virtual da Escola Superior de Advocacia da OAB/SP
Welcome to Revista ESASP - Revista Científica Virtual da Escola Superior de Advocacia da OAB/SP Founded in 2009, the ESASP Journal is a Diamond Open Access scientific journal operating on a continuous publication model. Committed to excellence, academic rigor, and ethical integrity, the journal serves as a qualified platform for the dissemination of legal knowledge, with no submission or article processing charges (APCs), contributing to the democratization of access to scientific production. Mission and Scope The ESASP Journal aims to foster contemporary legal debate through the publication of original research of high scientific relevance, contributing to the critical development of legal scholarship in Brazil and in dialogue with the national and international academic community. Its editorial scope focuses on the analysis of legal phenomena in their multiple dimensions, with an emphasis on critical, interdisciplinary, and transversal approaches that connect Law to current political, economic, technological, and social challenges. The journal prioritizes studies examining the interactions between Public and Private Law, as well as the impacts of institutional transformations, international dynamics, and digital innovations on legal systems, including issues related to Human Rights and Socio-Environmental Justice. The journal’s thematic breadth is supported by a multi-level editorial structure composed of an Editor-in-Chief, Executive and Associate Editors, and a Scientific Editorial Board with consultative and deliberative functions, including scholars affiliated with national and international institutions. This structure ensures the proper distribution of editorial responsibilities and coherence between the journal’s scope and its scientific evaluation capacity. The continuous submission flow is managed rigorously by the editorial team, which conducts initial screening (desk review), assigns manuscripts to specialized reviewers, and oversees the editorial process through to final decision. The Scientific Editorial Board supervises academic guidelines and consolidates editorial policies, ensuring that published works meet high standards of quality, relevance, and scientific integrity. In this way, the ESASP Journal ensures that its thematic diversity is supported by consistent editorial governance, capable of sustaining scientific rigor, transparency in editorial processes, and the academic relevance of its publications. Editorial Policy and Scientific Rigor The journal adopts a Double-Blind Peer Review system, ensuring impartiality and academic quality. Its editorial workflow follows transparency guidelines and best practices in publication ethics recommended by COPE (Committee on Publication Ethics). The journal publishes original articles (empirical or theoretical), academic essays, and critical reviews, serving as a reference space for undergraduate and graduate (lato and stricto sensu) researchers. Indexing and Visibility The ESASP Journal is indexed in important national and international directories and databases, such as Google Scholar, Miguilim, LatinREV, and ROAD, reaffirming its commitment to expanding visibility and democratizing scientific knowledge. All content is licensed under the Creative Commons Attribution 4.0 International (CC BY 4.0). ISSN: 2175-4462 Fees: None (Diamond Open Access) Periodicity: Continuous Publication History: Published continuously since 2009. Transparency and Archiving Statement To ensure historical integrity and digital preservation, retrospective issues (2009–2022) are available in a digital archive on ISSUU. Since 2023, the journal has adopted the OJS (Open Journal Systems) platform for editorial management and long-term digital preservation.
Escola Superior de Advocacia da Ordem dos Advogados do Brasil, Seção São Paulo (ESA OAB/SP)
This journal provides immediate open access to its content, based on the principle that making scientific knowledge freely available to the public supports a greater global exchange of knowledge. All articles are published under the Creative Commons Attribution 4.0 International License (CC BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided that the original work is properly cited.
Forms of domestic and family violence against women provided in law 11,340/2006.
The research aims to explain domestic and family violence and detail the five forms provided for in Article 7 of the Maria da Penha Law: physical, psychological, sexual, patrimonial, and moral. It addresses the historical context of Law 11,340/2006, related international treaties, and the cycle of violence — composed of tension, explosion, and "honeymoon" phases — aiming to assist in identifying and breaking abusive relationships. Received: October 2023 | Accepted: December 2023
Copyright (c) 2023 Wallas Richerd Trovelli (Autor) https://creativecommons.org/licenses/by/4.0/
Improvement contribution and The Democratic State of Law.
This descriptive work aims to identify and describe the main theories underlying conflict mediation . It describes Bertalanffy's general systems theory, first and second-order cybernetics, Maturana and Varela's autopoiesis — with brief contributions from Niklas Luhmann's theory — and Edgar Morin's complex thinking. The study addresses the lack of explicit epistemological bases for the institute in official materials. Received: September 2023 | Accepted: December 2023
Copyright (c) 2023 Vinicius Carvalho Carreira, Marianne Ramos Feijó (Autor) https://creativecommons.org/licenses/by/4.0/
The Obligation of States to Observe International Conventions
Studies ADI 7,028/AP and the prevalence of international treaties (Decree No. 6,949/09) over state laws to ensure full inclusive education for persons with disabilities. Received: September 2023 | Accepted: December 2023
Copyright (c) 2023 Tiago Augusto Pereira de Oliveira (Autor) https://creativecommons.org/licenses/by/4.0/
The Reflexes of the COVID-19 Pandemic on Family Law
Analyzes the compulsory changes in custody, visitation rights, and alimony caused by social isolation, highlighting the role of jurisprudence in protecting the health of minors. Received: September 2023 | Accepted: December 2023
Copyright (c) 2023 Thais Fernanda Silva Teodoro (Autor) https://creativecommons.org/licenses/by/4.0/
Unconstitutionality of Progressive Rates in National Career RPPS
Argues that unequal progressive social security rates between States and the Union for judiciary and teaching professions violate the tax equality of national-level careers. Received: September 2023 | Accepted: December 2023
Copyright (c) 2023 Ramon Leandro Freitas Arnoni (Autor) https://creativecommons.org/licenses/by/4.0/
The Civil Non-Prosecution Agreement in the Context of PAD
Explores the feasibility of applying the ANPC, an instrument of the Misconduct Law, to administrative disciplinary proceedings for swift treasury reparation and consensual resolution. Received: September 2023 | Accepted: December 2023
Copyright (c) 2023 Nilo Kazan de Oliveira, Gabriela Silveira (Autor) https://creativecommons.org/licenses/by/4.0/
The "Lifetime Review": A Brief Analysis of Decay and Equality of Rights
Evaluates the STF decision in Theme 1,102 and proposes that the 10-year limitation period should be counted only after the recognition of the right by the Supreme Court, aiming at material equality for the insured. Received: October 2023 | Accepted: December 2023
Copyright (c) 2023 https://creativecommons.org/licenses/by/4.0/
The Maria da Penha Law and forms of violence against women
Analyzes the protection of women in Law No. 11,340/2006, detailing forms of physical, psychological, sexual, patrimonial, and moral violence as serious human rights violations. Received: September 2023 | Accepted: December 2023
Copyright (c) 2023 Marta Buchignani, Taís Marta (Autor) https://creativecommons.org/licenses/by/4.0/
Discusses the prison crisis, the failure in resocialization mechanisms, and the need to observe the principle of human dignity to reduce criminal recidivism. Received: September 2023 | Accepted: December 2023
Copyright (c) 2023 Mariana Cristina Arnez (Autor) https://creativecommons.org/licenses/by/4.0/
Intrafamilial Child Sexual Abuse: An Intrinsic Problem in our Society
Analyzes sexual abuse committed by family members, the criminal responsibility of guarantors for improper omission, and highlights warning signs for the eradication of this domestic violence. Received: September 2023 | Accepted: December 2023
Copyright (c) 2023 Leandro Galvão (Autor) https://creativecommons.org/licenses/by/4.0/
Civic and Political Education as a Tool to Foster Active Participation
Advocates for civic education as a pillar to combat political alienation and strengthen citizenship, presenting research results on the importance of teaching political science in schools. Received: September 2023 | Accepted: December 2023
Copyright (c) 2023 Katia Cristina Gonçalves (Autor) https://creativecommons.org/licenses/by/4.0/
The Provision of IP User Data by ISP and Due Process of Law
Investigates the limits of administrative requests for connection data under the Marco Civil da Internet, highlighting the need for a judicial order for user identification and preservation of secrecy. Received: September 2023 | Accepted: December 2023
Copyright (c) 2023 João Guilherme Oliveira (Autor) https://creativecommons.org/licenses/by/4.0/
Copyright of Artificial Intelligence and its Reflexes in Comparative Law
Analyzes the legal challenges of intellectual property regarding autonomous machine creations, examining Brazilian legislation (which requires a natural person author) and international experiences in China, the USA, and Europe. Received: September 2023 | Accepted: December 2023
Copyright (c) 2023 Iriana Maira Munhoz Salzedas (Autor) https://creativecommons.org/licenses/by/4.0/
Subsistence Agriculture - A Plural Alternative for Sentence Reduction
Proposes the implementation of horticulture in prisons as a means of sentence reduction and resocialization, aiming at reducing public costs and humanizing the prison system through food self-sufficiency. Received: October 2023 | Accepted: December 2023
Copyright (c) 2023 Ingrid Adriana Bezerra de Sá (Autor) https://creativecommons.org/licenses/by/4.0/
How is the Tax Base of ITBI Determined in Cases of Property Contribution to Holdings
Examines the controversies regarding the ITBI tax base in the formation of holdings, reconciling the theses of the STF (Theme 796) and STJ (Theme 1,113) on book value versus market value. Received: September 2023 | Accepted: December 2023
Copyright (c) 2023 Felipe Gonsales, Júlia Firetti (Autor) https://creativecommons.org/licenses/by/4.0/
Classical School and the Paradigm of Non-Differentiation/ Discernment of Minors in Conflict with the Law
Analyzes the historical evolution of criminology from the perspective of the Classical School, focusing on how children and adolescents were criminally held accountable without distinction from adults until the 19th century. Received: October 2023 | Accepted: December 2023
Copyright (c) 2023 Diego Marques da Silva (Autor) https://creativecommons.org/licenses/by/4.0/
Fundamental Social Rights and the Judicialization of Public Policies in the Democratic State of Law
Discusses the State's obligation to guarantee social rights and the role of the Judiciary and the lawyer in filling state omissions to ensure human dignity. Received: October 2023 | Accepted: December 2023
Copyright (c) 2023 Denise Carvalho Klaus (Autor) https://creativecommons.org/licenses/by/4.0/
Improvement Contribution and the Democratic State of Law
The article explains the Improvement Contribution in Brazilian Tax Law, addressing concepts, historical evolution, and legal requirements for its collection linked to real estate appreciation from public works. Received: October 2023 | Accepted: December 2023
Copyright (c) 2023 Bruno Florentino Matos , Letícia Gibelle (Autor) https://creativecommons.org/licenses/by/4.0/
Conflicts between rights: dignity, free will and the right to (dignified) life.
The article analyzes the tension between fundamental rights, focusing on the conflict between the right to life, human dignity, and individual autonomy (free will) in the context of end-of-life decisions. It criticizes state paternalism and proposes an interpretation of the right to life that transcends mere biological existence, advocating for the concept of "dignified life" and the patient's right to self-determination in cases of futile treatments or terminality. Received in: September 2023 | Accepted in: November 2023
Copyright (c) 2023 Rosana Chiavassa, Marcelo Chiavassa Mello Paula Lima (Autor) https://creativecommons.org/licenses/by/4.0/
Civil liability in consultancy and legal opinions
The article analyzes the civil liability of lawyers in the performance of advisory activities, specifically in the preparation of legal opinions and reports . It discusses the balance between the prerogative of professional inviolability, essential for the independence of the legal profession in a Democratic State of Law, and the legal limits that impose liability in cases of intent or inexcusable error . The research is based on current legislation (OAB Statute and Civil Code) and the jurisprudence of Brazilian superior courts to define the criteria for the subjective liability of the liberal professional . Received in: September 2023 | Accepted in: November 2023
Copyright (c) 2023 Rogéria Fagundes Dotti (Autor) https://creativecommons.org/licenses/by/4.0/
Reconfiguring paradigms: towards a new anti-discrimination lexicon in the context of civil liability
The article analyzes the need to update the legal lexicon in Brazilian civil liability to adequately address structural racism and intersectional discrimination. It examines how traditional concepts of moral damage and honor often fail to capture the complexity of discriminatory offenses. A paradigmatic reconfiguration is proposed, integrating Anti-discrimination Law and Compliance, aiming for full reparation that considers human dignity from a social and collective perspective, overcoming merely individualistic views of damage. Received in: September 2023 | Accepted in: November 2023
Copyright (c) 2023 Luana Pereira da Costa, Fabiano Machado da Rosa (Autor) https://creativecommons.org/licenses/by/4.0/
The unconstitutional limitation of compensation for extra-patrimonial damages in labor relations
The article aims to describe and analyze the constitutionality of normative innovations imposed on the field of civil liability in labor relations with the 2017 labor reform. From a critical-reconstructive approach in the first stage of the work, we revisit labor law doctrine to recover the premises of social protection of labor and develop how compensation for moral damages is an instrument for promoting human dignity in employment relations. In the second part of the text, we proceed to content analysis of the arguments formulated by the ministers of the Supreme Federal Court in the judgment of Direct Action of Unconstitutionality No. 6,069. As results, we identified that the pricing of extra-patrimonial damages is incompatible with the constitutional order, as it is structured on a notion of equality that annuls the complex and diverse semantic-ontological matrix of human dignity in the paradigm of the Democratic Rule of Law. Received in: September 2023 | Accepted in: November 2023.
Copyright (c) 2023 Rodrigo Portela Gomes, José Paes de Santana (Autor) https://creativecommons.org/licenses/by/4.0/
Civil Liability For Extrapatrimonial Damage In Labor Relations: A Brief Analysis Of The Articles Of Title II-A DA CLT
This article analyzes civil liability for extrapatrimonial damage in labor relations, focusing on the analysis of the articles of Title II-A of the Consolidation of Labor Laws (CLT), introduced by the Labor Reform. The authors discuss the legal implications of the indemnification pricing, the constitutionality of the imposed limitations, and the subsidiary application of Civil Law, advocating for full reparation of damages suffered by employees and employers. Received: September 2023 | Accepted: November 2023.
Copyright (c) 2023 Rodolfo Pamplona Filho, Epifanio Nunes (Autor) https://creativecommons.org/licenses/by/4.0/
Civil Liability of the Real Estate Developer in Informal Real Estate Developments
This article analyzes the figure of the developer in real estate developments and their civil liability, addressing the problem of informal developments. The text explores the legal contours of real estate development, the real right of acquisition, the right of reservation, and the implications of the developer's actions as an unincorporated entrepreneur. It concludes that, in the absence of the registration of the development memorial, the developer's liability becomes personal, full, and joint, highlighting the evidentiary and legal security challenges for buyers and third parties involved. Received: September 2023 | Accepted: November 2023.
Copyright (c) 2023 Luiz Gustavo Lovato (Autor) https://creativecommons.org/licenses/by/4.0/
This article analyzes corporate civil liability in the context of the rapid technological and scientific transformations of the contemporary world. Faced with new risks and potential damages generated by these societal advances, the study proposes a critical and in-depth reflection on the role of Law. Specifically, it investigates the insurance contract not only as a risk mitigation mechanism, but fundamentally as an effective instrument for the extrajudicial resolution of conflicts, aiming to maintain peace and social balance in the face of current challenges. Received: September 2023 | Accepted: November 2023.
Copyright (c) 2023 Angélica Carlini (Autor) https://creativecommons.org/licenses/by/4.0/
For a New Civil Liability in the Digital Environment
The article discusses the urgent need to reconfigure civil liability in light of the challenges posed by the digital environment. By analyzing the impact of new technologies, algorithms, and social networks on the spread of misinformation (fake news) and the occurrence of digital damages, the authors examine Brazilian legislation and recent concrete cases. The study proposes a profound reflection on the attribution of responsibility to companies that own digital platforms, evaluating the risks inherent to their economic activities, the mitigation of damages, and the role of insurance in the era of the Fourth Industrial Revolution, with the aim of ensuring the protection of fundamental rights and the preservation of the Democratic State. Received in: September 2023 | Accepted in: November 2023.
Non-pecuniary damages: is there a practical and effective way to distinguish them?
The article analyzes the triple dimension of the human person (physical, psychic, and noetic) to establish criteria for distinguishing between types of non-pecuniary damages in the Brazilian legal system. The author investigates the scope of the concept of moral damage and the autonomy of aesthetic damage and existential damage, the latter subdivided into damage to social life and damage to life projects. Through a civil-constitutional approach, it seeks to demonstrate that the technical differentiation of these categories is essential to guarantee the full reparation of human dignity, avoiding conceptual simplification that hinders the exact understanding of injuries to personal rights. Received: September 2023 | Accepted: November 2023.
Copyright (c) 2023 Marcelo Marques Cabral (Autor) https://creativecommons.org/licenses/by/4.0/
The old moral damage and the new damages - a necessary debate.
The article analyzes the evolution of civil liability, focusing on the distinction between the traditional concept of moral damage and the emergence of so-called "new labels" for non-pecuniary damages. The author discusses the need for greater scientificity and objectivity in quantifying damages, questioning whether importing new categories of damages (such as damage to life projects or loss of useful time) is a methodological convenience or unnecessary fragmentation. It concludes on the importance of preserving the unity of moral damage, avoiding double jeopardy (bis in idem), while recognizing the need for doctrinal modernization in the face of new offenses to human dignity. Received: September 2023 | Accepted: November 2023.
Copyright (c) 2023 Eugênio Facchini Neto (Autor) https://creativecommons.org/licenses/by/4.0/
Civil liability for sentimental swindling.
The article analyzes civil liability in sentimental swindling, characterized by the use of affection to obtain illicit financial advantages, highlighting the growth of this phenomenon on digital platforms and the resulting violation of objective good faith. The author argues that compensation should be based on the theory of abuse of rights and the recognition of moral damages, often considered in re ipsa, aiming to protect the victim's dignity and prevent revictimization in the face of crafty manipulation that transforms feelings into profitable businesses. Received: August 2023 | Accepted: November 2023.
Copyright (c) 2023 Luciana Fernandes Berlini (Autor) https://creativecommons.org/licenses/by/4.0/
Affective abandonment in Brazilian jurisprudence and in the 20 years of the Civil Code of 2002.
This article analyzes civil liability for affective abandonment and its application in Brazilian case law during the twenty years of the Civil Code of 2002. Starting from a well-known ruling by the former Court of Appeals of Minas Gerais, the text addresses doctrinal positions, understandings from other State Courts, and the Superior Tribunal of Justice on themes such as the recognition of civil reparation in these cases, the applicable statute of limitations, and the start or term a quo of said period. Received: August 2023 | Accepted: November 2023.
Copyright (c) 2023 Flávio Tartuce (Autor) https://creativecommons.org/licenses/by/4.0/