A New Perspective on Civil Liability: the Necessary State Leadership Based on the Economic Analysis of the Right of Damage

Abstract

This work aims to analyze the context from which the protection of the victim of extra-patrimonial violations was thought, since their poor understanding ends up generating harmful effects on the fulfillment of their effective functions. As an example, the perspective that is mistakenly used when thinking about the theme culminated, nowadays, in the development of the fallacy related to the indemnification industry, a phenomenon whose unfeasibility is demonstrated from the use of the economic analysis of law (Law and Economics). Consequently, in order to reach the desired results, we conducted a literature review with a qualitative focus on the current conjuncture of the right of damage in Brazil and the exercise of state regulatory power. For this, we used the deductive method, since it started from the analysis of the abstraction of the context applicable to the questions presented, in order to bring to light its connecting points between the functions performed by civil liability, always aiming at the integral protection of the victim, and the regulation exercised by the State. Finally, as a proposal to think about a new perspective aimed at repairing extra-patrimonial damages, the research uses the criteria of state regulation, in order to conclude that the correct exercise of the administrative police power could enable the adoption of mechanisms that could effectively prevent such violations and penalize its causative agents, without, for this, reverting the entire logic provided for in relation to civil liability and the functions assigned to it.