Decisão judicial tributária sob a análise do pragmatismo jurídico de Richard Posner

• Ano de defesa: 2020
• Autor(a) principal: Campelo, Roberto Lima
• Orientador(a): Becho, Renato Lopes
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: Direito - Filosofia; Pragmatismo jurídico; Direito tributário; Execução fiscal
• Palavras-chave em Inglês: Law – Philosophy; Legal pragmatism; Taxation - Law and legislation; Tax sales
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://tede2.pucsp.br/handle/handle/23265

The present work aims to demonstrate that the judgment of REsp 1.340.553 / RS by the Superior Court of Justice was purely economic, that is, it had the sole purpose of maximizing the results of a judicial decision: to reduce the caseload of tax foreclosures in Brazil. This judgment gave a new interpretation to Article 40 of the Tax Foreclosure Law, setting a new initial term for counting the time for intercurrent prescription, innovating in the legal order, motivated by the expressive number of tax foreclosures in Brazil. For the investigation, Richard Posner's dogmatics, a great reference of juridical pragmatism, was sought for subsidies to establish the legal limits in the consideration of the factual consequences of a specific case in the judicial decision and, from there, answer if the STJ ruling provided a legally valid solution to the problem of intercurrent prescription as presented to you. To fulfill this purpose, the main lines of Posner's legal pragmatism are exposed, in order to discover to what extent his dogmatics would allow that the number of tax executions currently being processed in Brazil would be a valid argument for the judicial decision and, if so, under what limits and circumstances. In addition, answers will be sought, in the Posnerian thought, to the question of the judge's possibility to create law or not, in addition to the autonomy of Law in relation to other social sciences and the autonomy of judicial decision in relation to Law, understood, in this work, as assumptions the contextualization of legal pragmatism in the theory of a Brazilian judicial decision. Then, the economic analysis of Posner's Law – particularly with regard to the question of how the judge can take into account the practical consequences of a judicial decision – is contrasted with two other philosophical theories that use the result criterion as a guideline for any kind of decision: utilitarianism and consequentialism, in their pure versions. Such collation is essential for confirming or refuting the hypothesis raised in the work, since, in the line then followed, legal pragmatism is a more adequate way to face complex legal issues in relation to the other two. The conclusion is that the STJ's decision under study was based on a purely economic criterion, that is, achieving a practical result – reducing the number of tax foreclosures in Brazil -, without the adequate legal structure provided by legal pragmatism and without follow a procedure or adopt acceptable legal criteria to do so, thus being able to be characterized as consequentialist or utilitarian in its classic senses