Indenização punitiva no dano moral coletivo: análise da indenização frente ao dano moral coletivo a luz do caso das “pílulas de farinha” julgado pelo Superior Tribunal de Justiça no Resp. n° 866.636/SP

Abstract

Throughout history, civil liability has been related to criminal law, where sanctions were aimed especially at perpetrators of illicit acts. In addition to this, with the enlightenment of civil liability for human rights, civil compensation began to fulfill its primarily reparatory function with a focus on the victim of damage. On the other hand, the legal system sought to protect not only the patrimonial interest of society, but also extended the right of reparation to the moral scope. That said, the legislator also includes collective rights in its scope of protection, and the collective victim of moral damages is worthy of compensation. Therefore, it becomes essential to critically analyze the behavior of civil indemnity in collective moral damages with the verification of the pillars that support contemporary civil liability illuminated by the Federal Constitution of 1988, considering the punitive function of indemnity, and its harmonious coexistence with the legal order, taking as a practical example the case of “flour pills” judged in Resp. No. 866.636/SP of the STJ. To do so, firstly, an analysis is made of the general elements that make up the damages in civil liability, with the subsequent verification of the characteristics of collective moral damages, and finally, the study of the pillars of civil indemnity, with the subsequent criticism of (in) existence of a camouflaged and unregulated civil penalty in the indemnification of collective moral damages. The methodology used is deductive, with a descriptive and exploratory bias, with the use of jurisprudential, doctrinal and legal positions, in addition to research articles available on the internet. The research resulted in the conclusion that there is a civil penalty, with consequences that violate the constitutional foundations of legal certainty and the assumptions of civil liability, given the legislative omission in the regulation of collective moral damages.