Fundamentos dogmáticos para a modulação dos efeitos temporais das declarações de inconstitucionalidade em matéria tributária

• Ano de defesa: 2011
• Autor(a) principal: Luis Fernando Belem Peres
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Universidade Federal de Minas Gerais; UFMG
• Palavras-chave em Português: Direito; Inconstitucionalidade das leis; Direito tributário; Controle da constitucionalidade; Direito tributário Interpretação e construção
• Link de acesso: http://hdl.handle.net/1843/BUOS-8MRF4A

In the history of Brazilian Constitutional Law, the judicial recognition of the unconstitutionality of a particular legislative act meant, necessarily and inevitably, in its exclusion from the legal system with effect ex tunc. More recently, however by incorporating trends in the absolute majority of contemporary constitutional states, began to be admitted, also in Brazilian law as an exception, mitigating the effects of temporal declarations of unconstitutionality. Indeed, art. 27 of Law No 9.868/99, between attacks and standing ovations from the literature, came to actually establish that, "(...) declare the unconstitutionality of a law or normative act, and in view of legal reasons or exceptional social interest, can the Supreme Court, by a majority of two thirds of its members, restricting the effects of that statement or that it will only be effective from their res judicata or other time as may be prescribed. " The temporal modulation of the effects of the declarations of unconstitutionality is, in fact, being applied by the Supreme Court. The legal science, however, little has dealt with so far. In this context, this paper seeks to weave conceptual parameters that serve as a trail for the implementation of the rule in question, especially with regard to declarations of unconstitutionality of the tax law. With this intent, the analysis will return to the theoretical foundations that underlie constitutional jurisdiction, critically approaching the relationships that their activity shares with legal interpretation, the principle of division of state powers, democracy and protection of moral rights. Will be investigate, even if the temporal modulation of the effects of the declaration of unconstitutionality to reconcile with the postulate of supremacy of the Constitution. Finally, the approach developed in the perspective of the Brazilian Tax Law, and its peculiarities, the issue will be assessed in light of the fundamental rights of the taxpayer and the constitutional rules on taxing power