Negócios jurídicos sobre as prerrogativas processuais da fazenda pública

• Autor(a) principal: Barbosa, Leonardo Mateus Negreiros
• 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/44517
• topic: Negócios processuais; Prerrogativas processuais; Fazenda Pública

The article 190 of Civil Code of 2015 presents the atypicality clause of procedural negotiation. According to it, in a lawsuit that covers about susceptible rights of self-composition, both componentes will fully settle down the changes in the procedure, aiming at suiting to the peculiarities of the specific case. In light of this, it arises the inquiry about the possibility of Tax Authorities celebrating business involving its procedural prerogatives, there being the concern that the treasury remains more vulnerable in a eventual provision of a procedural prerogative. Thus, the general assumptiona was a very bibliographical research, so that several results were obtained. First, the procedural prerogatives of the Tax Authorities are based on the principle of public interest and isonomy. The Civil Procedure Code of 2015 privileged the cooperative model between the components which is reinforced by the art. 190. In addition, the principle of the unavailability of the public interest does not prohibit procedural negotiation by the Public Authority, which may have its procedural rights, observed certain limits. Lastly, it is counterproductive the prior establishment of sealing / permission for procedural business on the prerogatives of the Tax Authorities, and it must have an analysis of the real case, as well as the characteristics of each prerogative in its individuality must be taken into account. In any event, the Public Authority must observe the limits of art. 190 of the The Civil Procedure Code, as well as the principle of impersonality. In case of double deadline for all procedural manifestations, in compliance with the principles of efficiency and the reasonable duration of the process, in the cases of less complexity, it remains possible to abdicate this prerogative through a procedural business. In the case of personal subpoena, although there is no visible practical advantage for the public entity, there was no impediment to the procedural negotiation about this right. In relation to the demand notice payment system, due to its constitutional forecast, the principle of isonomy between the creditors of the Public Authority and the necessity of budget planning, it is forbidden its resignation through procedural business. About the mandatory appeal, although in the doctrine the understanding prevails in the sense that it is inadmissible the procedural business aiming at its removal, by virtue of the ascertainment of its availability by the Public Authority, it was noticed that nothing hinders the public lawyer from explicitly expressing, through procedural negotiation, for the refusal to mandatory appeal. Therefore, it was concluded that the only procedural prerogative that finds impediment at its disposal through procedural business consists in the system of demand notice payment; as regard the others, one should analyze case by case, and a negotiation is not a priori forbidden.