The Law of damage and the preventive function challenges of effectiveness through the inhibitory injunction in cases of collision with fundamental rights

Abstract

The present article analyzes the necessary resignification of the parameters of civil liability, in view of the new structuring of the damage in contemporary society. Under the scope of the Law of Damage, it has studied the action of the preventive injunction against the possibility of reduction of irreversible damages. The Brazilian system progresses in the direction of changing the focus from the figure of the aggressor to the
damages suffered by the victim, which has greatly improved the perspective of the reparation. The search for effectiveness in the protection of fundamental rights and the reinterpretation of private law institutes has given to the law of damage the need to protect new categories of damages at the individual level, and to avoid detrimental results to transindividual and socially harmful rights through the institute of prevention, analyzed from the point of view of risks, which could generate irreparable damages to rights, not only individually but also collectively. The society of risks from nowadays experiences that there is a clear need to update the current system, essentially repressive, for a proactive model that establishes mechanisms of prevention and precaution. new problems. But, we can still find a continuity link between the new discipline and the Portuguese tort law.