A classificação dos terrenos de marinha para viabilização de sua função social no Estado democrático de direito brasileiro

• Ano de defesa: 2004
• Autor(a) principal: Gazola, Patrícia Marques
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Faculdade de Direito de Vitoria; Brasil; FDV
• Palavras-chave em Português: Terrenos de marinha; Estado democrático de direito; Interesse público; Constituição; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: http://191.252.194.60:8080/handle/fdv/149

This paper analyzes the literature on “terrenos de marinha” that have being a question of political and social dissatisfaction for more than two centuries; the studies about this kind of Union property are rare. It verifies the need to create a legal solution to the problem, assuming that only by classifying the “terrenos de marinha” in accordance with their real and varied destination, i.e. factual and legal, it will be possible the identification, in an actual case, of the social function of this geographic area that belongs to the Union. In the first 300 sites researched on www.google.com on March 2nd 2004, using the words “terrenos de marinha”, it was found in news, reports, scientific articles (about environmental interests, location of the average high tide line in 1831), in minutes, speeches, legislations, notes on law projects, seminars and varied political actions, the presence of conflict of interests between the tributary interest of the Union and interests related to: safety of the family residence, environmental preservation of permanent preservation areas (mangroves and sandbanks), city planning, municipal autonomy, legal safety of public records etc. Researching on the House of Representatives (camara.gov.br) and Congress sites (senado.gov.br), using the words “terrenos de marinha”, “fees, occupation, Emphyteusis contracts”, it identifies how the conflicting interests are being considered by the people’s representatives in the Congress. It gathers law-projects related to the interests identified in the first research. It evaluates that, although the problems related to “terrenos de marinha” are in discussion in the Congress, they are far from a solution. It studies the evolution of the public property, perceiving a process of making sacred the state property, on a contrary direction of making public the private property. It indicates the inexistence of instruments in the doctrine that obligate the State private property to exercise its social function. It states that the State property should submit itself to the impositions of the social function of the property, which should be systematically identified and consonant with the ethic principles of the Brazilian Democratic State. In order to make feasible the identification of the social function of these areas and compel the Union to exercise its property in accordance to its social function, it proposes a new understanding of the legal nature of these areas. Contrary to what most of the doctrine state, the “terrenos de marinha” are not State private assets. The “terrenos de marinha” consist on a geographic area which comprises many kinds of public assets. “Terrenos de marinha” of people’s common use (streets, squares, parks, environmental areas, etc.); “terrenos de marinha” of special usage (harbours, airports, military fortifications, as well as all properties destined to civil service); ”terrenos de marinha” of private property (areas of consolidated occupation, not related to any public function), as well as the “terrenos de marinha” occupied by slaves descendants e Indian populations. Thus, by adequately classifying the “terrenos de marinha” and identifying the constitutionally tutored values and the needs and public interests predominant in each of them, it makes viable the identification of their social function submitting them to the constitutional project of the Letter that instituted the Brazilian Democratic State.