Posse sobre bens públicos e tutela coletiva: uma análise crítica da jurisprudência do Superior Tribunal de Justiça

Abstract

The purpose of this article is to review the institute of possession, especially its relationship with public domain assets, refuting the Superior Court of Justice's ruling majority position in relation to the subject, proposing its overcoming. The hypothesis is that the Citizen Court has been misinterpreting the issue since the Civil Code of 2002 was in force, stating that the relationship of the individual with public good is one of detention. It is also argued that collective tutelage is a promising foundation to promote the ascendancy of the thesis proposed here, as has been done by the Superior Court of Justice, even though exceptionally. As a theoretical foundation, the most recent doctrine of Civil Law was used as a basis for the notes made, as well as the teachings of Ihering, who was fundamental to his objective theory of possession. Finally, it was pointed out the legal bases that serve as the basis for the conclusion of the viability of private ownership of public property and its consequent judicial defensibility.