Detalhes bibliográficos
| Ano de defesa: |
2020 |
| Autor(a) principal: |
Barros Neto, Adalberto Pinto de
 |
| Orientador(a): |
Araujo, Clarice von Oertzen de |
| Banca de defesa: |
Não Informado pela instituição |
| Tipo de documento: |
Dissertação
|
| Tipo de acesso: |
Acesso aberto |
| Idioma: |
por |
| Instituição de defesa: |
Pontifícia Universidade Católica de São Paulo
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| Programa de Pós-Graduação: |
Programa de Estudos Pós-Graduados em Direito
|
| Departamento: |
Faculdade de Direito
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| País: |
Brasil
|
| Palavras-chave em Português: |
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| Palavras-chave em Inglês: |
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| Área do conhecimento CNPq: |
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| Link de acesso: |
https://tede2.pucsp.br/handle/handle/23075
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Resumo: |
In times of hypertrophy in the exercise of jurisdictional activity in the country – a phenomenon commonly called 'judicial activism' – the eyes of the academy have been tenaciously turning to the production of judicial decisions by analyzing them under different prisms such as procedural, institutional, and judicial, philosophical and etc. Obviously, studying the form or quality of judgments issued by the judiciary dates back to the days of Kelsen and other scholars linked by the same goal: to deepen the analysis of the fundamentals of the judicial decision. The present work follows in this same way, it begins to study the foundation of the acts of the magistrates in the light of the legal pragmatism, whose episteme school is still little spread in the national legal science. In order to better meet the objectives that are intended to be achieved through this essay, the Federal Supreme Court ruling in which its judges had to analyze the presence or otherwise of the confiscation effect on tax fines was chosen as a case study. As will be exposed throughout the work, the abundant use of the principles of reasonableness and proportionality in the judgment marked it, because they are principles that carry a high charge of valuation by those who use them, it is important to study the way they were exposed and managed to find out whether or not there was voluntarism/subjectivism – the personal element of the judge – at the time the sentence was rendered. As a preamble, all this analysis will run along the theoretical path established by the school of legal pragmatism, assessing possible levels of subjectivism/voluntarism in judging the presence or not of the confiscation effect on tax fines and, if so, how the designated school handles this personal element of the judge within the context of his own epistemology and what contributions he can make to the judicial practice exercised in the Brazilian courts |
