O DANO-MORTE À LUZ DOS PRESSUPOSTOS DA RESPONSABILIDADE CIVIL: DIREITO PRÓPRIO DOS HERDEIROS OU ADQUIRIDO PELA VIA SUCESSÓRIA?

Abstract

The current Brazilian jurisprudence grants compensation for moral damages to the relatives of the victim of an illicit act that caused their death resulting in “pain and suffering” caused by the loss of a loved one must be recognized as liable to reparatory justice. From the analysis of the violation of the right to life and considering the assumptions of civil liability and the finding that the violation of the right to life and, consequently, the death of someone possesses an autonomous reparation in itself in the Portuguese legal system. Therefore, this work aimed to define death-damage as autonomous damage deserving of reparation (death-damage in the strict sense). Based on the assumption of illegality in order to question which right was effectively violated by the injury, in this case, the right to life, it was concluded that its violation generates extracontractual damage whose reparation should be owned by the victim. As a result, we point out that, the inappropriateness of the criterion used by the Brazilian Judiciary for granting damages to the victim's family, taking into account that the violated right to life is the exclusive property of the victim and that the "pain and suffering” caused by his death are characterized as consequences of the injury and not as damage in itself, therefore, an inappropriate criterion to justify the existence of the right of the relatives in the event of the death of a loved one. Following the assessment of the treatment of the subject by the Superior Court of Justice, we argue that the best solution to repairing the violation of the right to life in the civil sphere, with a view to legal certainty and legal technicality, would be the recognition of the death-damage as autonomous damage, whose indemnification would integrate the deceased person’s estate and would be transferred to their heirs by Law of Succession. Thus, the adoption of subjective and flexible criteria for reparatory justice would be avoided, such as the legitimacy to claim compensation based on an affectional criterion, in an unsystematic and difficult way to measure, in this specific case, and the stabilization of equitable compensatory damage, given the fact that there should be no disparity in regards to the compensation amount resulting from the violation of the right to life since every life deserves equal treatment in the current legal system.