Da eficÃcia das decisÃes do STF em ADIN e ADC: Efeito vinculante, coisa julgada ERGA OMNES e eficÃcia ERGA OMNES.

• Autor(a) principal: Andrà Dias Fernandes
• Data de Publicação: 2007
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UFC
• Texto Completo: http://www.teses.ufc.br/tde_busca/arquivo.php?codArquivo=4522
• topic: DIREITO CONSTITUCIONAL

The decisions of the Brazilian Supreme Court (STF) taken in the so called abstract control of constitutionality provoke a huge impact all over the country, for its effects reach everyone. Nonetheless, those effects are not applicable to everyone in the same way. Thus, some are compelled by the binding effect (âefeito vinculanteâ) ― like all the administrative organs and all the judges, barring the Supreme Court itself ―, while others ― such as the legislators, when exerting their legislative powers ― simply are not. On the other hand, everyone is bound by the res iudicata erga omnes effect, including the Supreme Court and the legislators. Furthermore, the self concept of binding effect (âefeito vinculanteâ) is not yet clear in the doctrine and in the jurisprudence. As a matter of fact, considering that even the Supreme Court has not outlined its range, the definition of binding effect remains quite mysterious. Nevertheless, a plain definition is proposed, based upon the constitutional text. Moreover, the objective and subjective limits of the binding effect are analyzed, as well as the differences with regard to the res iudicata erga omnes and to the erga omnes efficacy (âeficÃcia erga omnesâ). It is also analyzed the possibility of manipulation, especially in time, of the effects of the Supreme Courtâs decisions in ADIn (direct action of unconstitutionality ― âaÃÃo direta de inconstitucionalidadeâ) and ADC (declaratory action of constitutionality ― âaÃÃo declaratÃria de constitucionalidadeâ), supported by the principles of proportionality and reasonableness. Finally, it is sustained the necessity of overriding the applicability of the binding effect and the erga omnes efficacy in some exceptional situations, also based on the principles of proportionality and reasonableness. The use of the distinguishing technique is advocated. Some cases in which the Supreme Court itself and other Superior Courts did that are commented on and held as paradigmatic in order to guide the decisions all over the country in future analogous situations