Credit Titles: a Relationship Between Legal Certainty and Justice in the Theories of Creation and Issuance
Securities play a key role in the market once they allow the credit circulate quickly and safely. It could be said that securitues have been the greatest contribution of business law for the formation of the modern economy. However, precisely because they permit a quick ad safe credit circulation, t...
| Main Authors: | , |
|---|---|
| Format: | Article |
| Language: | Portuguese |
| Published: |
Conselho Nacional de Pesquisa e Pós-graduação em Direito (CONPEDI)
2015-12-01
|
| Series: | Revista Brasileira de Direito Empresarial |
| Subjects: | |
| Online Access: | http://www.indexlaw.org/index.php/direitoempresarial/article/view/609 |
| _version_ | 1818320392343781376 |
|---|---|
| author | Wallace Fabrício Paiva Souza Jean Carlos Fernandes |
| author_facet | Wallace Fabrício Paiva Souza Jean Carlos Fernandes |
| author_sort | Wallace Fabrício Paiva Souza |
| collection | DOAJ |
| description | Securities play a key role in the market once they allow the credit circulate quickly and safely. It could be said that securitues have been the greatest contribution of business law for the formation of the modern economy. However, precisely because they permit a quick ad safe credit circulation, there may be some questions about the subject. When we analyze the theories about creation and issuance of the securities, it appears that under Brazilian law it is possible that a person who had a debt claim stolen be required to pay for it, for example. And in this context, a conflict may arise between legal certainty and certainty itself on one hand, and equity and justice on the other. The first ones answer the need of citizens to have organic structure and system drive so that the right to reduce the social reality in simple and formal schemes. The latter ones, in turn, respond to the need to seek the maximum possible match between the law and reality, so that the law is not immutable and insensitive. However, it is not always possible to reconcile them fully, requiring a balance between them in fact situation. Thus, important to examine this relationship in the context of theories of creation and issue, especially when a title circulates without the will of the applicant and he has to fulfill the obligation. Relevant to this analysis, because they are both legal certainty and certainty as justice and equity requirements of law. If there is no balance, we run the risk of harming the market and therefore the entire economy of a country or that there are decisions that generate a sense of injustice, being harmful to the credibility of the judiciary. At the end of the work, then, it is expected to justify the need for this balance, particularly the importance of debt securities and the consequences that generate in society. As a research method, the exploration was used, so that the object has been studied by collecting and doctrine study, scientific articles and dissertations that portray the theme. |
| first_indexed | 2024-12-13T10:24:17Z |
| format | Article |
| id | doaj.art-3c9266f87cea45a3a75080271fcdfbe4 |
| institution | Directory Open Access Journal |
| issn | 2526-0235 2526-0235 |
| language | Portuguese |
| last_indexed | 2024-12-13T10:24:17Z |
| publishDate | 2015-12-01 |
| publisher | Conselho Nacional de Pesquisa e Pós-graduação em Direito (CONPEDI) |
| record_format | Article |
| series | Revista Brasileira de Direito Empresarial |
| spelling | doaj.art-3c9266f87cea45a3a75080271fcdfbe42022-12-21T23:51:05ZporConselho Nacional de Pesquisa e Pós-graduação em Direito (CONPEDI)Revista Brasileira de Direito Empresarial2526-02352526-02352015-12-011110912910.26668/IndexLawJournals/2526-0235/2015.v1i1.609610Credit Titles: a Relationship Between Legal Certainty and Justice in the Theories of Creation and IssuanceWallace Fabrício Paiva Souza0Jean Carlos Fernandes1Mestre em andamento em Direito na Faculdades Milton Campos - FMC, Minas Gerais, MGUniversidade de Coimbra, UC, Coimbra, PortugalSecurities play a key role in the market once they allow the credit circulate quickly and safely. It could be said that securitues have been the greatest contribution of business law for the formation of the modern economy. However, precisely because they permit a quick ad safe credit circulation, there may be some questions about the subject. When we analyze the theories about creation and issuance of the securities, it appears that under Brazilian law it is possible that a person who had a debt claim stolen be required to pay for it, for example. And in this context, a conflict may arise between legal certainty and certainty itself on one hand, and equity and justice on the other. The first ones answer the need of citizens to have organic structure and system drive so that the right to reduce the social reality in simple and formal schemes. The latter ones, in turn, respond to the need to seek the maximum possible match between the law and reality, so that the law is not immutable and insensitive. However, it is not always possible to reconcile them fully, requiring a balance between them in fact situation. Thus, important to examine this relationship in the context of theories of creation and issue, especially when a title circulates without the will of the applicant and he has to fulfill the obligation. Relevant to this analysis, because they are both legal certainty and certainty as justice and equity requirements of law. If there is no balance, we run the risk of harming the market and therefore the entire economy of a country or that there are decisions that generate a sense of injustice, being harmful to the credibility of the judiciary. At the end of the work, then, it is expected to justify the need for this balance, particularly the importance of debt securities and the consequences that generate in society. As a research method, the exploration was used, so that the object has been studied by collecting and doctrine study, scientific articles and dissertations that portray the theme.http://www.indexlaw.org/index.php/direitoempresarial/article/view/609Títulos de créditoSegurança jurídicaJustiçaTeoria da criaçãoTeoria da emissão |
| spellingShingle | Wallace Fabrício Paiva Souza Jean Carlos Fernandes Credit Titles: a Relationship Between Legal Certainty and Justice in the Theories of Creation and Issuance Revista Brasileira de Direito Empresarial Títulos de crédito Segurança jurídica Justiça Teoria da criação Teoria da emissão |
| title | Credit Titles: a Relationship Between Legal Certainty and Justice in the Theories of Creation and Issuance |
| title_full | Credit Titles: a Relationship Between Legal Certainty and Justice in the Theories of Creation and Issuance |
| title_fullStr | Credit Titles: a Relationship Between Legal Certainty and Justice in the Theories of Creation and Issuance |
| title_full_unstemmed | Credit Titles: a Relationship Between Legal Certainty and Justice in the Theories of Creation and Issuance |
| title_short | Credit Titles: a Relationship Between Legal Certainty and Justice in the Theories of Creation and Issuance |
| title_sort | credit titles a relationship between legal certainty and justice in the theories of creation and issuance |
| topic | Títulos de crédito Segurança jurídica Justiça Teoria da criação Teoria da emissão |
| url | http://www.indexlaw.org/index.php/direitoempresarial/article/view/609 |
| work_keys_str_mv | AT wallacefabriciopaivasouza credittitlesarelationshipbetweenlegalcertaintyandjusticeinthetheoriesofcreationandissuance AT jeancarlosfernandes credittitlesarelationshipbetweenlegalcertaintyandjusticeinthetheoriesofcreationandissuance |