Da possibilidade de usucapião de bens de empresas públicas

Abstract

The Civil Code regulates in its article 98 that only the assets owned by legal entities governed by public law will be considered public assets, that is, the Union, the States, the Municipalities and the autarchies and public foundations and all others will be private. The Federal Constitution of 1988 provides those public assets may not be confiscated, so the work discussed the possibility of confiscating assets from public companies, because when it comes to these, a problem arises notably in the scope of fundamental rights and the principle of supremacy public interest, in view of the emergence of a collision of principles. The fundamental rights that apply to the specific case and the scope and limits imposed on them were identified, as they are not absolute, but when in conflicts they can never be excluded, as, based on the principle of weighting, one should be observed with greater emphasis and the other with subtlety. There was also an analysis of the right to property and the usucapio institute, its concepts, limits and relevance to the social context, as they are also linked to the fulfillment of the social function of property, which should be observed in all types of real estate, public or not. Regarding public companies themselves, their functions and purposes were analyzed and, based on this, the legal nature of their assets, which may be considered public or private, according to the activity practiced by their owner, and thus may or not be adversely affected, as they are private, but can be affected by the provision of exclusively public service and social interest, which makes them public and makes it impossible to be adversely affected. The jurisprudence on the subject was also observed, emphasizing the understanding of the Federal Supreme Court in the same sense as this research.