Os punitive damages e a função punitiva da responsabilidade civil no direito brasileiro: remédio viável ou importação impossível?

Abstract

The jurisprudence of the Brazilian courts and the position of many of the national theorists are aligning on the sense to recognize a punitive attribute of the civil liability, even though such matter is not expressively present in the written law. The adoption of such view, however, leads to the adaptation of controversial remedies such as the punitive damages, which, being born within foreign legal systems, become real “legal abominations” when applied to other systems that do not find theirselves ready to receive them. With that matter in mind, this paper intends to trace a brief parallel concerning the form in which the civil liability and its punitive function are exercised in both common law and civil law systems, taking as reference how the matter is applied in both North-American and Brazilian law. Starting from this analysis, we pass on to constructing a general view on the punitive damages, going from their British origins to their modern application patterns in the studied systems, giving special attention to the controversy that the punitive function provokes in the Brazilian legal order. Finally, this research will serve to the pursuit of an answer for the following question: is it possible to harmonize the adoption of a punitive function in the treat of civil liability in the Brazilian Law? It is a recommended reading to all of those who are interested in the area of civil liability analyzed through a comparative perspective, determined to build knowledge under a multicultural view.