Trabalho de Conclusão de Curso de Graduação
O casamento e a união estável no paradigma instituído pelo Estado Democrático de Direito: perspectivas constitucionais do direito sucessório
Autor
Gadenz, Danielli
Institución
Resumen
From the anthropological-historical context of the family relations formation in Brazil,
approaches a discussion about the adequacy of the protection of constitutional legislation
under spousal inheritance and stable mate in relation to the constitution of 1988. Having as
general parameters for the study the theoretical boundaries of the Secular State and
Democratic State seeks to hermeneutical-philosophical interpretation of the legal provisions
in order to adapt them to the constitutional dictates. Therefore, begins with the verification of
historical evolution in the constitution and legal conception of family entities from the
influence of religion, particularly of Christianity, as well as the reflections in this current
conception of family and marriage in Brazil, with an analysis major remnants of the Christian
religion presents today the concept of family by doctrine and jurisprudence of the legislature
and attachment to religious ideals against the recognition of Brazil as a secular state by the
Constitution of 1988. The following is an attempted interpretation, from the philosophical
hermeneutics, the provisions of the Federal Constitution, in which it was found that is not
equipped with full implementation in inheritance law concerning the surviving spouse and
companion, both for constitutional legislation, as case law. It was observed that the
application of the provisions of the Civil Code, from the conception of the constitutional
issue, the case law in cases of succession to the surviving spouse or partner is not consonant
with the paradigm established by a democratic state. It was noted the need for wider
application of legislation concerning the surviving spouse to partner on equal treatment, he
excelled as a constituent. Finally, he warned up to the necessary modification of formal civil
legislation to adapt it to the constitutional dictates.