O bem de família do fiador nos contratos de locação: uma proposta de superação do recurso extraordinário 407.688
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Data
2017
Autores
Orientador(res)
Neves, Gustavo Kloh Müller
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Resumo
The debate regarding the possibility of judicial constriction upon the homestead property of the guarantor of a leasing contract is still constant even after the Supreme Court’s decision determining its legitimacy. This paper proposes to analyze the subject under the logic of the proportionality rule, analyzing whether the decision fulfilled the three elements required for the rule to be regarded as proportional. It also proposes to analyze the Legislative Power’s approach to the subject. To do so, the historical development of the right to housing in Brazil, its area of influence and connection with other fundamental rights established in the Constitution, as well as the different academic positions on the subject, using as a starting point the theoretical definitions and interpretation by the jurisprudence regarding homestead and guarantee contracts. Regarding the legislative production, a research was done using the database available in the Congress’ website, analyzing how Congress has been approaching the subject. Lastly, this paper makes a proposal to the Judicial and Legislative Powers, aiming at improving the practices in the rental industry, effectively assuring better access to housing in society. The proposal done to the Judicial Power is to overrule the decision taken in 2006 that ruled constitutional the norm that permits the judicial constriction upon the homestead property of guarantors in leasing contracts, proposing that the Court declares it unconstitutional. The proposal done to the Legislative Power is that it should work to create new guarantees that attend the necessities of the market without seizing the right to access to housing of the guarantor.