Direitos da personalidade: disponibilidade relativa, autonomia privada e dignidade humana

• Ano de defesa: 2008
• Autor(a) principal: Cantali, Fernanda Borghetti
• Orientador(a): Facchini Neto, Eugênio
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica do Rio Grande do Sul; Porto Alegre
• Palavras-chave em Português: DIREITO CIVIL; DIREITO CONSTITUCIONAL; DIREITO; DIGNIDADE HUMANA; PERSONALIDADE (DIREITO)
• Link de acesso: http://hdl.handle.net/10923/2417

This present study, closely connected with the line of research on the efficacy and effectiveness of the Constitution and the fundamental rights in Public Law and Private Law, addresses the horizon of the Constitutional Civil Right, as well as the current Civil Law dogmatic taken into effect by the phenomenon of repersonalization, considering dignity of the human person as guiding value and supreme principle of juridical order. Leaning towards a thorough analysis of the trajectory of protection of the person and of the personality from ancient times to the present day, this paper illustrates the construction of the theory of rights to personality, which, granted by the principle of human dignity, are solidly protected by the general right of protection and promotion of the human person. In view of the indissoluble connection between dignity and personality, the latter is also a value; fundamental value of order. In the classical theory, reproduced in the 2002 Civil Code, rights to personality are considered unavailable. Nevertheless, such feature has been made relative in order to consider the relative availability of these rights, as protection is not restricted to the protective realm per se but it also achieves the positive exercise of these rights. Analysis of this phenomenon takes into account that the bearers of rights to personality may dispose of assets linked to personality, by either letting them go or framing them, as long as voluntarily and within limits. The capacity of self-determination of personal interests is a dimension of dignity itself, and, this way, it is impossible to block private autonomy in existential juridical situations. Moreover, the fundamental right to free development of personality originates from human dignity, granting the person the conformity to his or her spiritual project.A necessary ambivalence of rights to personality is of utmost importance, since the essential unavailability and relative availability, rooted in free development of personality, are positions that live under a theory that allows relativization, constantly urging that the unit of the system be centered on human dignity. Finally, once it has been stated that relative availability involves the possibility of restriction of rights the dispositive act becomes legitimate only after extensive pondering over the concrete case is done. This is so because availability implies an overlapping of fundamental rights – autonomy on one side and rights to personality meant to restrict on the other side – and pondering is the solution to the so-called hard cases.