Incompatibilidades da legislação de desapropriação com a Constituição do Brasil de 1988

Abstract

The goal of this study is to analyze the legislation about expropriation in Brazil, in confrontation with the constitutional order established in 1988. Through an historic analysis of the institute of expropriation, it is possible to arrive to the conclusion that it is intimately connected to the conception of right to property in each historic moment. The moment in which the Decree-Law 3365 (BRAZIL, 1941) was established, the dictatorship, was marked by authoritarianism and by the idea of absolute supremacy of the public interest over the private, which reflects in its dispositions and makes many of them inadequate to the present legal system. Thus, presented cases in which there is a conflict between the rules of the Decree-law 3365 and those of the Constitution (BRAZIL 1988), the Rule of Law should be protected, by directly employing the rules of the Constitution, and denying the rules that are contrary to the constitutional order.