Alterações na noção de posse no direito brasileiro e seus reflexos nos conflitos fundiários coletivos judicializados no município de Paço do Lumiar / MA

Abstract

The accomplishment of the present research aims to contribute to the development of academic studies about the construction of Law and Cities through the specific approach of juridic institution of possession. It aims to comprehend how far the preliminary decisions in collective agrarian conflicts judicialized in the city of Paço do Lumiar/MA reflect the consolidation of the constitutional civil conception of possession contemporaneously developed in Brazilian law. It resorts, initially, to bibliographic review to identify the bases of existance and of judicialization of agrarian conflicts on the unequal access to land and on the socio-spatial segregation in the cities, as well as on brazilian neo-constitutionalism, respectively. The formation and development of possessory theory in brazilian law points the adoption of the objective theory assigned to Rudolf von Ihering only on what‘s convenient to the defense of private property – specially in relation the loss of possession and domain exception – and the current resistance to the constitutionalization of civil law in terms of definition of possession. The documental research had, as basis, the processes of Repossession Suits No. 3482013 (2 nd Civil Court) e 11112015 (1 st Civil Court), judicialized in Paço do Lumiar/MA, where was identified the search for protection of domain by possessory, the ausence of author claim in the sense of accomplishment of the social function, as well as the presence of circumstances indicative of disablement/underutilization of the realty. From these concrete cases, the research shows that, in its action, Judiciary doesn‘t consider the complexity of agrarian conflict and uses concepts of material law and outdated procedural rules in the current constitutional-civil legislative plan in benefit of the not possessor owner.