Ativismo judicial e modulação de efeitos em sede de controle de constitucionalidade: as influências do consequencialismo no julgamento de matéria tributária

• Autor(a) principal: Saboya, Vinicius Gomes
• Data de Publicação: 2019
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Repositório Institucional da Universidade Federal do Ceará (UFC)
• Texto Completo: http://www.repositorio.ufc.br/handle/riufc/49367
• topic: Ativismo judicial; Modulação de efeitos; Direito Tributário; Consequencialismo judicial

The judiciary has been playing an increasingly active role in the Brazilian state. Everyday we realize the influence of this power in the federal pact, being the center of attention due to the weakening of Brazilian political institutions that does not hold the confidence of the population. Combining this scenario with the characteristics brought about by neo constitutionalism, an environment was established in the country in which the judiciary could exercise its power almost unlimitedly, culminating, among other consequences, in an expansion of judicial activism. The present study analyzes the phenomenon of judicial activism in the area of Tax Law, mainly through decisions taken by the brazilian Federal Supreme Court in judicial review. Initially, it weaves a study of the entire framework that underlies judicial activism, noting how the evolution of the rule of law provided the expansion of the activity of magistrates. We will then explain about the modulation of effects in the context of constitutionality control to conclude that, in the case of Tax Law, the activism of the Supreme Ministers has been manifested mainly through the use of temporal modulation of the effects of the decision declaring the unconstitutionality of a law. We come, therefore, to the final part of the study, in which we will address the fragile argumentation used by the Ministers through the study of some emblematic cases, emphasizing, above all, the clear influence of judicial consequentialism in directing their votes. Thus, we will use the research on the scientific productions already written on the subject, such as scientific articles, theses and dissertations, as well as the analysis of emblematic jurisprudence.