Repercussão geral e súmula vinculante: os efeitos no controle difuso
Brazil since its first republican constitution has adopted systems of laws control. The review activity was given to three state powers or functions state, Executive, Legislative and Judiciary. However, it appears that in the country along the constitutional history, has stood considerably the...
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| Formato: | Dissertação |
| Idioma: | por |
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Universidade Federal do Rio Grande do Norte
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| Endereço do item: | https://repositorio.ufrn.br/jspui/handle/123456789/13921 |
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| Resumo: | Brazil since its first republican constitution has adopted systems of laws control. The review
activity was given to three state powers or functions state, Executive, Legislative and Judiciary.
However, it appears that in the country along the constitutional history, has stood considerably the
jurisdictional control of the most important control. Initially, back in 1891, Brazil adopted the
jurisdictional control of diffuse from U.S, whose role in monitoring of standards is delivered to all
organs of the judiciary, which may face a case, put on trial, ascertain whether or not the possibility
of applying a law, removing its impact in case of unconstitutionality. In 1969, entered in the second
legal model of judicial review, the concentrated control of constitutionality, whose inspiration
comes from the positivist theory of Hans Kelsen, and was adopted by the Austrian Constitution of
1920. According to the abstract control the supervision of law is given to a Court or Constitutional
Court, responsible for the analysis of the legal constitutionality independent of its application to a
specific case. In Brazil the role of concentrated control was handed over exclusively to the Supreme
Court, which serves as the Constitutional Court, which accumulates that function with other
constitutionally provided jurisdiction. Throughout this period, from 1891 until today, Brazil has
maintained a dual system of judicial control of legal constitutionality, where they coexist and
harmonize the diffuse control exercised by any organ of the Judiciary, and concentrated control of
competence the Supreme Court. However, one must recognize that with the advent of the Federal
Constitution of 1988, the concentrated control has emerged on the national stage due to two
important factors: the expansion of the legal capacity to sue and the inclusion of other ways control,
besides the already known Direct Claim of Unconstitutionality. This concentrated control and
projection of the Supreme Court s attempt to become a true constitutional court, led to a relative
weakening of diffuse control even when performed by the Brazilian Constitutional Court. In order
to become a true constitutional court, all decisions handed down by the Supreme in the exercise of
constitutional jurisdiction should have the same weight and the same measure, or at least bring
improvement to similar effects, once is the responsible for the final word when it comes to
constitutional interpretation. Thus, the writs of certiorari and stare decisis were responsible for
profound changes in the diffuse control, allowing the Supreme Court can strengthen its decisions
even in the diffuse control. These two institutions have substantially changed the legal status of
diffuse control, allowing an extension of the effects of decisions handed down by the Supreme
Court, so that you can no longer be said that the effects of this control to restrict the disputing
parties in the process |
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