Direitos fundamentais nas relações entre particulares

Abstract

This work intends to examine if, how and how far the fundamental rights bind the private parties, produce effects in the relationships these individuals engage with each other. Taking the deductive method, the monographic method, the documental and bibliographic way of research, this dissertation intends to offer answers to those questions. Aspiring to doing so, one examines during the work the relationship between the State of law, the constitutionalism and the fundamental rights. Then, one inquires the functions that the norms of fundamental rights have in the legal order, from their two dimensions, the subjective and the objective. Next, one presents reasons for the effectiveness of fundamental rights in the relationships between private parties, pointing the problem of private powers, the constitutionalisation of the Law, and also the positive constitutional fundamentals. After, one presents the models of the effectiveness of fundamental rights in the relationships between private parties, which are: the not model, the direct effectiveness theory, the indirect effectiveness theory, the theory of positive obligations of the State, the state convergence theory, the three level theory and the state action doctrine; also, one analyzes a leading case decided by the Supremo Tribunal Federal. At the end, as the result of the research, one concludes that the legal model that is more suitable to deal with the problem of Drittwirkung, more consentaneous with the structure of the State of law, is the indirect effectiveness’s one, as presented by the theory of positive obligations of the State.