Banca de QUALIFICAÇÃO: SOPHIA FÁTIMA MORQUECHO NÔGA

Uma banca de QUALIFICAÇÃO de MESTRADO foi cadastrada pelo programa.
STUDENT : SOPHIA FÁTIMA MORQUECHO NÔGA
DATE: 10/11/2020
TIME: 14:30
LOCAL: UFRN - PROGRAMA DE PÓS-GRADUAÇÃO EM DIREITO / Videoconferência
TITLE:

The unconstitutional state of affairs in Brazil: a new facet of judicial activism

KEY WORDS:

Unconstitutional state of affairs; Prison overcrowding; Alternative measures; Institutional dialogue. 

PAGES: 153
BIG AREA: Ciências Sociais Aplicadas
AREA: Direito
SUMMARY:

The declaration of the unconstitutional state of affairs by the Federal Supreme Court in the Non-compliance with Fundamental Precept No. 347, as well as in Extraordinary Appeal No. 580,252 brings to Brazil the recent theory of Colombian origin. As a result, several questions emerge, ranging from the formation of the concept to the applicability of this new theory, both in terms of the legitimacy of those who declare it, and in its practical effectiveness. This last point reveals itself as the great challenge in recognizing the unconstitutional state of affairs, especially after the insertion of article 20 in the Law of Introduction to the Norms of Brazilian Law, by Law 13.655, of 2018. The aforementioned provision launched a new look under important aspects that must appear in the decisions of the controlling, administrative and judicial sphere. Notably, the need to analyze the practical consequences, before making any decision. As a result, the applicability of this novel theory is seen with a legislative limitation, committed to the responsibility of attributing the effectiveness of decisions through a horizontal and vertical expansion of the duty of reasoning - the great obstacle of the thesis of Colombian origin. Furthermore, it is open to debate whether this interpretative method is shown to be a facet of extrapolated judicial activism or whether, in fact, it is coherent with the other mechanisms existing in the Brazilian normative system. In this sense, the research aims to address the application of the unconstitutional state of affairs theory in Brazil, analyzing the cases in which it raised and the current set of regulations. For this, the hypothetical-deductive method, the qualitative approach and applied research are adopted, through statistical data, case study, bibliographic, documentary research and analysis of jurisprudence, including the exploration of doctrine, legislation and judicial decisions, both Brazilian, as well as international, especially from Colombia. Taking this into account the, it follows that it is compatible with the Democratic State of Law, enshrined in the Federal Constitution of 1988, the figure of the unconstitutional state of affairs in Brazil, as an interpretive method. However, it is emphasized that, for the proper use of this theory, the operator of the law must consider the practical consequences of this decision - according to article 20, of the Law of Introduction to the Rules of Brazilian Law - the previous stimulus to an institutional dialogue and the principle of separation of powers, especially in the allocation of public funds.

BANKING MEMBERS:
Interno - 2230148 - ERICK WILSON PEREIRA
Interna - 1753047 - MARIANA DE SIQUEIRA
Presidente - 1149384 - WALTER NUNES DA SILVA JUNIOR