A Santa Sé como um Estado e proprietária de imóveis no Brasil: a excepcionalidade dentro da generalidade

Abstract

The Holy See contains the constituent elements of a State and, thus, is recognize by international society and, notably, by Brazil, with whom celebrated treaties, importing to mention the Holy See-Brazil agreement signed on 2008, conventionally named Statute for the Catholic Church in Brazil. Although, it s a different State from the others for all human history, reason why it s been attributed to it a sui generis characteristic, combination of spiritual power (of Roman Catholic Curch) and temporal (of Holy See/Vatican City State). The objective of this thesis is to investigate if as a sui generis State is permitted to the Holy See be proprietress of real states in Brazil, considering the prohibition at art. 11, § 2nd, of the Law of Introduction to Brazilian Legal System (Lei de Introdução às Normas do Direito Brasileiro), applicable to foreign States. To solve the proposed problem, it was chose to use a symbiotic method, or syncretic, justice and equity, idealized for D. Abade Joaquim de Arruda Zamith, in order to avoid injustices or a non juridical result. From investigation results the verification that the Holy See is a foreign State, recognized by Brazil and, therefore, submitted to all Brazilian internal law (justice criteria). However, the art. 11, § 2nd, of the Law of Introduction to Brazilian Legal System is not applied, because it s a sui generis State, unequal, earning the application of the maxim ―treating the equal ones with equality and the unequal ones with inequality, to the extent of their inequalities‖ (equity criteria), besides it is an institution of profound moral character, which doesn t offend sovereignty and security of Brazil. Thereafter, the Holy See, that is the temporal expression of the spiritual Roman Catholic Church, may be proprietress of the real states necessary to the propagation and cult of catholic faith, as well as welfare promotion