A objetivação do controle concreto de constitucionalidade nas decisões do Supremo Tribunal Federal
The independence of the United States and the revolutions that emerged in Europe in the eighteenth century led to the birth of the written constitution, with a mission to limit the power of the State and to ensure fundamental rights to citizens. Thus, the Constitution has become the norm and ulti...
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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/123456789/13985 |
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Resumo: | The independence of the United States and the revolutions that emerged in Europe in the
eighteenth century led to the birth of the written constitution, with a mission to limit the
power of the State and to ensure fundamental rights to citizens. Thus, the Constitution has
become the norm and ultimate founding of the State. Because of this superiority felt the need
to protect her, emerging from that constitutional jurisdiction, taking control of
constitutionality of provisions his main instrument. In Brazil, the constitutionality control
began with the Constitution of 1891, when "imported" the American model, which is named
after incidental diffuse model of judicial review. Indeed, allowed that any judge or court could
declare the unconstitutionality of the law or normative act in a concrete case. However, the
Brazilian Constituent did not bring the U.S. Institute of stare decisis, by which the precedents
of higher courts eventually link the below. Because of this lack, each tribunal Brazilian freely
decide about the constitutionality of a rule, so that the decision took effect only between the
parties to the dispute. This prompted the emergence of conflicting decisions between
judicantes organs, which ultimately undermine legal certainty and the image of the judiciary.
As a solution to the problem, was incorporated from the 1934 Constitution to rule that the
Senate would suspend the law declared unconstitutional by the Supreme Court. With the
introduction of abstract control of constitutionality, since 1965, the Supreme Court went on to
also have the power to declare the invalidity of the provision unconstitutional, effectively
against all without the need for the participation of the Senate. However, it remained the view
that in case the Supreme Court declared the unconstitutionality of the fuzzy control law by the
Senate would continue with the competence to suspend the law unconstitutional, thus the
decision of the Praetorium Exalted restricted parties. The 1988 Constitution strengthened the
abstract control expanding legitimized the Declaratory Action of Unconstitutionality and
creating new mechanisms of abstract control. Adding to this, the Constitutional Amendment.
No. 45/2004 brought the requirement of general repercussion and created the Office of
Binding Precedent, both to be applied by the Supreme Court judgments in individual cases,
thus causing an approximation between the control abstract and concrete constitutional. Saw
themselves so that the Supreme Court, to be the guardian of the Constitution, its action should
be directed to the trial of issues of public interest. In this new reality, it becomes more
necessary the participation of the Senate to the law declared unconstitutional in fuzzy control
by the Supreme Court can reach everyone, because such an interpretation has become
obsolete. So, to adapt it to this reality, such a rule must be read in the sense that the Senate
give publicity to the law declared unconstitutional by the Supreme Court, since mutated
constitutional |
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