Modelos reparatórios em responsabilidade civil loss based damages, gain based damages e punitive/exemplary damages e a reforma do Código Civil brasileiro

Abstract

This paper focuses on reparatory models in civil liability, analyzing the most common forms in the civil law and common law matrices, namely: the compensatory (loss based damages), the restitutory (gain based damages) and the retributive (punitive/exemplary damages), as well as its inclusion in the reform of the Brazilian Civil Code.. Therefore, the question that guides the study is: how are the compensatory, restitutory and retributive reparation models configured and can they be applied in the Brazilian civil liability system? The applied methodology is through the inductive approach method, seeking the interpretation of reality from the elected contributions. It starts from what is experienced alongside concepts, rescuing, questioning and reinterpreting the assigned meanings, applying general principles about the specific context. As method of procedure it used the monographic. And, finally, regarding the research technique, the indirect documentation was adopted. The development is divided into three moments, and in each of them work on one of the repair models. In general conclusion, it is noted that Brazil currently expressly adopts the compensatory model (loss-based damages), but not the others. This scenario may change with the approval of the Civil Code reform project, which enshrines all three models. Regarding the restitutory model (gain-based damages), There is no express provision in Brazil (except in cases provided for in the Intellectual Property Law), although there are judgments regarding the profit from the intervention. In the reform project, this model is enshrined as an alternative to patrimonial damages. In turn, the retributive model is a civil penalty and, today, lacks prior legal provision for its application, although the courts use it as a "punitive moral damage". The Civil Code reform provides for a pedagogical sanction, a condemnatory complement in highly reprehensible cases. Finally, the synergistic integration of compensatory, restitutive, and retributive models in the Civil Code reform project is understood as a vanguard, as it would represent a true recognition of the real scope of the functions and principles of civil liability, protecting against damages and unlawful acts.