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, Revista ESASP is a Diamond Open Access scientific journal with a continuous publication flow. Committed to excellence, academic rigor, and ethical integrity, the journal acts as a vanguard platform in the dissemination of legal knowledge, without charging any article submission or processing charges (APCs). Mission and Scope The mission of the ESASP Journal is to foster contemporary legal and social debate through the publication of highly relevant original research. Our scope focuses on the critical analysis of the legal phenomenon in its multiple dimensions, prioritizing transversal approaches that connect Law to the complex political, economic, and social challenges of today. The journal is dedicated to exploring the intersections between the spheres of Public and Private Law, the innovations brought by international and digital dynamics, and the fundamental issues of Human Rights and Socio-environmental Justice. We thus seek to problematize law comprehensively, encouraging continuous interdisciplinary dialogue with Applied Social Sciences and ensuring a pluralistic and critical perspective. Editorial Policy and Scientific Rigor The journal adopts the Double-Blind Peer Review system, ensuring impartiality and academic quality. Our editorial flow follows the transparency guidelines and best practices in scientific 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 researchers (Lato and Stricto Sensu). Indexing and Visibility Revista ESASP is included in important national and international directories and databases (such as Google Scholar and Miguilim), reaffirming its commitment to the democratization of knowledge. All content is licensed under the Creative Commons Attribution 4.0 International License (CC BY 4.0). ISSN: 2175-4462 Fees / APCs: Zero (Diamond Model) Periodicity: Continuous Flow History: Published continuously since 2009. Transparency and Archiving Note: To ensure historical integrity, retrospective issues (2009-2022) are available in our digital archive on ISSUU. Since 2023, the journal has used 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. The license used is Creative Commons Attribution 4.0 International (CC 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.
Copyright (c) 2023 https://creativecommons.org/licenses/by/4.0/
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/
The quantification of moral damages in Brazil
This study focuses on the quantification of moral damages within the Brazilian legal system. It questions the effects generated by the methods and parameters adopted in Brazilian case law. The general objective is to analyze the history, concepts, and foundations of moral damages. Specifically, the article addresses the criteria for quantifying moral damages, focusing on quantification by arbitration, the model most commonly used in the national legal system. The research is based on criticisms of the subjective nature of judges' decisions. The chosen method is qualitative and exploratory, using a bibliographic collection procedure through a critical-descriptive approach to doctrine, laws, jurisprudence, and articles. It concludes that due to the open parameters applied in quantifying moral damages, judges fail to assess the specificities of each case, leading to criticism and controversy regarding efficiency in moral damage reparation. Received: August 2023 | Accepted: September 2023
Copyright (c) 2023 Eduardo Lemos Barbosa (Autor) https://creativecommons.org/licenses/by/4.0/
This article was produced based on the analysis of recent decisions on the issue of health judicialization, as well as the impact on municipalities and the state of the excessive spending that these convictions imply. Thus, given this scenario, the work at hand aims, directly and concisely, to demonstrate the harmful consequences for the maintenance of a SUS (Unified Health System) for all as a constitutional precept, since these injunctions granted and compliance at any cost generate system inefficiency for the rest of the population. Furthermore, the article envisions a possible solution to be taken, which could reduce the vast majority of convictions against federated entities. Received: September 2023 | Accepted: December 2023
Copyright (c) 2023 Nilo Kazan de Oliveira, Guilherme Bittencourt Martins (Autor)
The Existential Minimum and the Reserve of the Possible in the face of the Integrality and Universality of the Right to Health in the light of R. Dworkin and J. Rawls
This article aims to analyze the phenomenon of the existential minimum and the reserve of the possible in the face of the constitutional guarantee of the fundamental right to public health. Through the analysis of Supreme Court judgments, it sought to enter into the implementation of theories in the Brazilian jurisdiction. The theme is justified by dealing with current topics and concepts of great relevance, such as the judicialization of health and the fulfillment of public policies, under the bias of the theories established by Ronald Dworkin and John Rawls. Received: September 2023 | Accepted: December 2023
Copyright (c) 2023 Ana Carolina Falqueiro de Souza, Thiago Munaro Garcia (Autor) https://creativecommons.org/licenses/by/4.0
Identifying vulnerable groups is a difficult task; this work proposes the intersectional evaluation method by crossing discriminations that lead to vulnerability such as gender, race, color, sex, religion, and ethnicity, among others. It is also known that minority groups are generally vulnerable, but this hypothesis is not always true. There is much prejudice and choices are affected by discrimination, often veiled, such as microaggressions. It is through human rights education that change can occur for a fairer society. Received: September 2023 | Accepted: December 2023
Copyright (c) 2023 Taís Nader Marta, Eduardo Telles Lima Rala (Autor) https://creativecommons.org/licenses/by/4.0
The article presents a scientific and humanized look at the communication dilemmas between people undergoing treatment for serious diseases and their caregivers. Through the analysis of statistical data and Law, the author proposes compassionate communication as an essential tool to welcome human suffering and seek new ways for patients to find peace in moments of terminality. Received: September 2023 | Accepted: December 2023
Copyright (c) 2023 Ana Claudia Quintana Arantes (Autor) https://creativecommons.org/licenses/by/4.0
Legal Proceduralization Techniques in Biolaw and Complex Responses to Scientific and Ethical Development in the 21st Century
Faced with the insufficiency of positivist legal techniques for legal decision-making and nomogenesis, this article studies the application of judicial proceduralization techniques in bioethical analysis situations. Based on the study of real factual situations, it seeks to demonstrate the importance of basing on fundamental rights and the use of proceduralization techniques to achieve appropriate responses in situations of absence of law, allowing Law to offer solutions to conflicts arising from scientific and technological development. Received: September 2023 | Accepted: December 2023
Copyright (c) 2023 Henderson Fürst de Oliveira (Autor) https://creativecommons.org/licenses/by/4.0
Presentation and Preface: Where Justice and Health Meet.
This text introduces the proceedings of the II Interdisciplinary Regional Congress, held in Bauru by OAB SP in November 2023 . It addresses the event's consolidation as a reference in the dissemination of knowledge in the areas of Constitutional Law, Medical Law, Bioethics, and Biolaw . The document describes the diversity of topics covered, such as palliative care, health judicialization, and the rights of people with rare diseases, highlighting the integration between Law and Health professionals for the future of society .
Copyright (c) 2023 Marcia Regina Fernandez Polettini, Eduardo Telles Lima Rala, Taís Nader Marta (Autor) https://creativecommons.org/licenses/by/4.0
Partition acceleration techniques in the CPC/2015
The article analyzes the innovations of the 2015 Code of Civil Procedure aimed at overcoming delays in judicial inventory and partition procedures. It addresses mechanisms such as partial partition, partial early judgment on the merits, and evidence-based injunctions, demonstrating how these techniques allow for the immediate enjoyment of uncontroversial shares and provide greater speed and effectiveness to inheritance rights. Received: April 2024 | Accepted: May 2024
Copyright (c) 2024 Ricardo Calderón (Autor) https://creativecommons.org/licenses/by/4.0
Forced heirs in contemporary Civil Law: expanding testamentary freedom and protecting the vulnerable
The deconstruction of legal institutes to ascertain whether their utility and social function persist in succeeding times is an important doctrinal activity for the evolution of law. In the case of the forced share (legitima), the foundations that motivated its creation and maintenance in antiquity and the Middle Ages – mainly the family's joint ownership of property – no longer hold in contemporary times, which requires the recognition of the expansion of the private autonomy of the deceased and the freedom of testing, and the forced share should be maintained only for the protection of vulnerable heirs Received: April 2024 | Accepted: May 2024
Copyright (c) 2024 Giselda Maria Novaes Hironaka (Autor) https://creativecommons.org/licenses/by/4.0
Controversial issues on the non-restitutability of alimony in Family Law
The author, after providing conceptual and nomenclature clarifications regarding alimony and other maintenance funds, addresses controversial issues involving the flexibilization of the non-restitutability of family alimony. It addresses these questions: (1) limited retroactivity of the sentence that reduces or removes alimony; (2) right to "qualified reimbursement" against the true holder of the maintenance duty; (3) right to compensation for additional expenses with pregnancy; (4) right to demand accounts from the other parent regarding alimony paid to the minor child; (5) right of the guardian and managing parent to a pro-labore included in the amount of the pension paid by the other; (6) collision between the unattachability of the family home and the maintenance debt of relatives. Received: April 2024 | Accepted: May 2024
Copyright (c) 2024 Carlos Elias de Oliveira (Autor) https://creativecommons.org/licenses/by/4.0
Private pension and the non-communicability of deposited amounts for the purpose of asset division in divorce
This article aims to identify the legal nature of private pension contracts and their plans, as well as to analyze the communicability of deposits for the purpose of asset division in divorce. To this end, it was necessary to study the origin of social security in Brazil and its legal nature, to delve into the classification of the social security contract, differentiating it from the insurance contract, to understand the legal treatment given to open and closed private pension entities, making a further differentiation, this time with financial investment contracts and their plans. And then verify its incidence in civil legislation related to property communion regimes. Received: April 2024 | Accepted: May 2024
Copyright (c) 2024 Débora Brandão (Autor) https://creativecommons.org/licenses/by/4.0
Affective abandonment and civil liability
The article analyzes affective abandonment from the perspective of civil liability in Brazilian Law. The author differentiates affection (a faculty) from care (a legal duty), arguing that compensation does not stem from the absence of love, but from the breach of the duty of assistance, coexistence, and support for children. The text covers doctrinal and jurisprudential evolution, highlighting the punitive and pedagogical function of financial reparation in the face of the violation of the personality rights of children and adolescents. Recebido em: Março de 2024 | Aceito em: Maio de 2024
Copyright (c) 2024 Cláudia Stein Vieira (Autor) https://creativecommons.org/licenses/by/4.0
From civil liability to liability for damages: reasons for changing the understanding of the institute
The article proposes a paradigmatic shift in the understanding of the civil liability institute in Brazil. The author argues that the classic expression "civil liability" is insufficient to cover the complexity of contemporary relations, suggesting the adoption of the term "liability for damages". The analysis focuses on the centrality of the victim and full reparation, going through the functionalization of the institute in light of human dignity and fundamental rights, overcoming a merely sanctioning or patrimonialist view. Received: April 2024 | Accepted: May 2024
Copyright (c) 2024 Pablo Malheiros Cunha Frota (Autor) https://creativecommons.org/licenses/by/4.0
Technological advances in health, conflicts and the role of the medical board
The article discusses the impact of technological innovations in supplementary health and the emergence of conflicts between the attending physician's prescription and the health plans' auditing. The author proposes the use of a medical board as a technical and efficient mediation mechanism, capable of providing a reasoned third opinion, aiming to reduce litigation and ensure a balance between the right to treatment and the viability of the health system. Received: March 2024 | Accepted: May 2024
Copyright (c) 2024 Angélica Carlini (Autor) https://creativecommons.org/licenses/by/4.0
The article examines the application of mediation as an appropriate means for conflict resolution in the franchising system. The author highlights the importance of preserving the collaborative relationship between franchisor and franchisee, analyzing the advantages of the consensual route compared to the slowness and strain of the Judiciary. The text addresses the Brazilian legislative landscape, the nature of franchise contracts, and how mediation can act in managing controversies to maintain business viability. Received: March 2024 | Accepted: May 2024
Copyright (c) 2024 Fernanda Tartuce (Autor) https://creativecommons.org/licenses/by/4.0
Liability for damage arising from violation of the social function of the contract: notes on the STJ decision in Special Appeal 1.295.838/SP
The text analyzes the Superior Court of Justice's ruling in REsp 1.295.838/SP, which deals with the social function of the contract and the civil liability of third parties (external effectiveness). Through a literature review and decision analysis methodology, the author examines the construction of the contemporary meaning of Art. 421 of the Civil Code, pointing out positive and negative aspects of the judgment. It proposes paths for exploring the rule from the perspective of legal certainty and normative coherence. Received: April 2024 | Accepted: May 2024
Copyright (c) 2024 André Luiz Arnt Ramos (Autor) https://creativecommons.org/licenses/by/4.0
Early maturity of the obligation and its influence on the assessment of the starting point of the legal fact of prescription: notes on a judicial decision
The article analyzes the impact of the early maturity of contractual obligations on the calculation of the prescription period. The author discusses whether the power to accelerate maturity, common in deferred execution contracts, changes the dies a quo of the prescription or if it remains linked to the originally agreed term. Based on a judicial decision, the text explores theories on creditor inertia and the claim, contrasting classic and contemporary Civil Law views on legal certainty and objective good faith. Received: April 2024 | Accepted: May 2024
Copyright (c) 2024 Marcos Catalan (Autor) https://creativecommons.org/licenses/by/4.0
Impressions on the exercise of private autonomy in the context of contemporary procedural law
The article analyzes the extent and limits of private autonomy in relation to public policy rules within the Brazilian legal system, focusing on the innovations of the 2015 Code of Civil Procedure. The author discusses the possibility of parties entering into procedural legal transactions, questioning whether the freedom of financial settlement would allow for the exclusion of repetitive appeals or the adoption of non-state rules in proceedings under state jurisdiction. The text retrieves the classic doctrine of Clovis Beviláqua regarding the limits of judicial discretion and the judge's "free scientific investigation," contrasting it with the rigidity of contemporary precedents. Received: April 2024 | Accepted: May 2024
Copyright (c) 2024 Rosa Maria Andrade Nery (Autor) https://creativecommons.org/licenses/by/4.0