Analysis of indirect expropriation in the light of the 1988 Constitution of the Federative Republic of Brazil
The present paper aims to analyze the expropriation institute in the light of the individual rights provided by the 1988 Constitution of the Federative Republic of Brazil (CFRB). Thus, the bibliographic research technique was used and the scientific articles and legislations related to the topic un...
| Authors: | , |
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| Format: | article |
| Status: | Published version |
| Publication Date: | 2023 |
| Country: | Brasil |
| Institution: | Universidade Federal de Minas Gerais (UFMG) |
| Repository: | Revista de Ciências do Estado (Online) |
| Language: | Portuguese |
| OAI Identifier: | oai:periodicos.ufmg.br:article/42504 |
| Online Access: | https://periodicos.ufmg.br/index.php/revice/article/view/e42504 |
| Access Level: | Open access |
| Keyword: | Administrative law Constitutional Law Indirect expropriation Property right Direito Administrativo Direito Constitucional Desapropriação indireta Direito de propriedade Derecho Administrativo Derecho Constitucional Expropriación indirecta Derecho de propriedad |
| Summary: | The present paper aims to analyze the expropriation institute in the light of the individual rights provided by the 1988 Constitution of the Federative Republic of Brazil (CFRB). Thus, the bibliographic research technique was used and the scientific articles and legislations related to the topic underwent a doctrinal and jurisprudential study. Accordingly, the property of law was primarily studied, through its historical origin, from ancient to contemporary age, and the analysis of the protection conferred by the current legal system. Subsequently, state intervention in private property was addressed through the study of each of the modalities, including their fundamentals, requirements, procedures and other particularities. Finally, the application of indirect expropriation generates conflict between the constitutional principles of the public interest supremacy and the intangibility of public works on one hand, and the legal process and the prior compensation on the other. This antimony was resolved by applying the technique of balancing assets, interests, principles and values. Therefore, the conciliation between the colliding principles, and the consequent adaptation of the indirect expropriation to the CFRB, is interpreted as “incorporated”, provided by article 35 of the Decree-Law 3365/41, in order to restrict its use to exceptional situations, in which the Administration’s possession of private property occurred in good faith and is preceded by a relevant public investment. |
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