Os efeitos das alterações legislativas sobre decisões judiciais de mérito proferidas e transitadas em julgado em data anterior à vigência das referidas modificações

• Autor(a) principal: Coelho, Priscila Maria Monteiro
• Data de Publicação: 2010
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/36703
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO PROCESSUAL CIVIL; Estado Democrático de Direito; Segurança Jurídica; Coisa julgada; Relação jurídica tributária continuativa; Alteração Legislativa; Democratic State of Law; Judicial Safety; Res judicata; Ongoing tax judicial relation; Legislative alteration

The current paper shall investigate the effects of the legislative alterations over the judicial decisions regarding merit rendering cases and lawsuits regarded as in rem judicatam which took place prior to the enactment of such modifications. The Democratic State of Law is one which there is judicial safety, with people being able to count on very well established rules, as well as relying on what is allowed, prohibited and mandatory and having conditions of knowing, with certain time ahead, which are the possible sanctions in order to adhere or not to the normative rulings. It is from the judicial safety that many individual guarantees derive, as for instance, the non retroactive effect of the law, the unchanged character of res judicata and the protection of the perfect judicial act as well as the acquired right. From the same principle, it is also possible to see the claimed stability of the decided cases of administrative acts that constitute rights. The fact that causes res judicata is the prohibition or barring of the new trial, among the same parties, of the same case, inside the same standards portrayed in the request and in the claim whose sentence is immune to objection by appeal. The effect of res judicata in the ongoing tax judicial relation makes it unchanged while its forming aspect remains unaltered. When the decision rendered based on the current rulings became res judicata it therefore shall remain as so until another ruling establishes it in a differentiated way – another kind that shall be feasible precisely when facing the relativity of the effects of res judicata – Thus the legislative alteration may cause effect on the judicial relation that had been protected by res judicata. Furthermore, for that understanding, it is not necessary to consider the relativism aspect of res judicata. The stare decisis n. 239 from the Supreme Federal Court only says that in the voiding sentences or even in the deconstructive sentences of the debt instrument rendered in the stay of execution, the objective effectiveness of res judicata shall range only through the efficiency limits of the void sentence or the deconstructed administrative act itself, for the reason that it entails results only over the undue character of the tax related to the period indentified in the debt instrument, reason why it may not be projected concerning the future periods, differently from what occurs in the declaratory judgment and on the writ of mandamus over which it is requested the preliminary injunction, directed towards the tax judicial relations in a ongoing and long run format