A concessão de uso especial para fins de moradia na ordem jurídica brasileira: a medida provisória 2.220 a partir de uma análise constitucional
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Data
2011-05
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Sousa, José Augusto Garcia de
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This paper aims at exploring the private ownership of public property under the perspective of neo-constitutionalism, focusing on the social functions of property. The core of this paper is the statement that preaches that as from the 'concession of special use for housing' – which was established by the Provisional Executive Order 2.220 which rules Article 183 of the Brazilian Constitution, in its 1st paragraph – its social function, which once was overlooked in litigation concerning public property, is now argued in court. This paper is written based on the analysis of jurisprudence all five Brazilian federal jurisdictions, the Superior Federal Court, as all well as courts in Rio de Janeiro and Rio Grande do Sul. Once this analysis was concluded, the core of the thesis herein described could be attested. So as to ensure maximum efficiency in the social function of ownership, this study defends the disregard of the principle of temporal restriction imposed by the PEO 2.220, having grounds on four arguments of constitutional principle: the observance of constitutional normative power, the application of Human Rights international treaties, the respect to the principle of equality and, at last, the principle of constitutional supremacy.