Desapropriação-Confisco e a proteção do terceiro de boa-fé à luz da jurisprudência do tema 399 da repercussão geral do Supremo Tribunal Federal

Abstract

This study analyzes the protection of third parties in good faith within the scope of confiscatory expropriation, as provided for in Article 243 of the Brazilian Federal Constitution of 1988, in light of the historical evolution of property rights and the jurisprudence established by the Supreme Federal Court in General Repercussion Theme 399. Historically, the right to property shifted from a liberal, absolute, and inviolable conception to a model conditioned by the principle of its social function, which legitimizes state interventions over private patrimony within the Democratic State of Law. In the Brazilian legal system, confiscatory expropriation represents the most severe modality of sanctioning intervention, authorizing the expropriation of urban or rural properties used for the illegal cultivation of psychotropic plants or for the exploitation of labor under conditions analogous to slavery, without any form of compensation to the owner. However, it is observed that both the text of Article 243 of the Magna Carta and Law No. 8,257/1991, which regulates the procedure, remain silent regarding the legal standing of a property owner who did not participate in the illicit activity, derived no benefit from it, and lacked any knowledge of its occurrence on the premises. Given this legislative gap and the necessity to reconcile the punitive purpose of the institute with fundamental guarantees — such as due process of law, the non-transcendence of punishment, proportionality, and the protection of good-faith property —, the Supreme Federal Court, upon adjudicating Extraordinary Appeal No. 635,336/PE (Theme 399), established central hermeneutic parameters for the application of the measure. Methodologically, the research was conducted using the deductive method, supported by a qualitative approach of an exploratory and descriptive nature, utilizing a bibliographical and documentary review of the 1988 Constitution of the Republic, applicable infraconstitutional legislation, specialized doctrine in Constitutional and Administrative Law, as well as relevant judicial precedents.