O princípio da função social da propriedade e seus efeitos nos poderes inerentes à propriedade pública: o dever de funcionalidade no confronto público versus privado

Abstract

To affirm that the social function of property modulates the exercise of the right opens up a range of inexhaustible possibilities. The purpose of this thesis is to present a specific hypothesis in which this principle will radiate effects on public property and constitute a limitation to the plenitude of the powers inherent to the domain. In the theoretical path to the conclusion that is obtained, several basic questions arise that require definitions of conceptual tools, such as the meanings of legal principle, social function, property rights and public property, always focused on the speculative support that the assumption contemplates. The legitimacy of the present legal position requires a rational argumentation that differentiates it, without completely dissociating it, from the scenario of possession of public goods, as well as reporting the most obvious objections that, in the end, will sound merely apparent. The interpretation of normative texts and, mainly, the fulfillment of meanings of abstract terms such as public interest and dignity of the human person lead, in their singular realization through the social function of public property, to the practical closure materialized in the duty of justification attributable to the public owner in lawsuits that intend to take back occupied public assets, consisting of an important restriction on the powers of the property owner, resulting from the functionalization of the right in the accommodation of public and private interests. If since Weimar property compels, public property obliges much more.