A modulação de efeitos das declarações de inconstitucionalidade como garantia fundamental e seus fundamentos de legitimidade diante do caso específico com análise de decisões do Supremo Tribunal Federal

Abstract

This work evaluates the foundation of legitimacy for the Brazilian Supreme Court to modulate the effects of a declaration of unconstitutionality. It also questions whether the possibility of the Supreme Court modulating the effects of a declaration of unconstitutionality derives from the provision established in article 27 of Law 9.868/1999; and also analyzes points that give rise to the delay in pronouncing a judgment of declaration of unconstitutionality, since this may give rise to the need for modulation. It maintains that it is possible to modulate the effects of declarations of unconstitutionality, but the basis for the Federal Supreme Court to do it does not necessarily comes from article 27 of Law 9.868/1999, but rather from the fundamental rights possibly implied by the operation of retroactive effects of the nullity to be radiated in the case submitted to the analysis of the Supreme Court. The FDV’s doctorate is interested in studying the modulation of the effects of declarations of unconstitutionality as something to ensure the fundamental rights that may be affected by the mentioned retroactive effect of the declaration of unconstitutionality That is, the foundation of legitimacy for the modulation of effects must be observed within the specific case. For this purpose, a formulation capable of approaching Law as something to be constructed based on a situation with which it is faced is used as a base theory; instead of something necessarily already given, in a pre-established way. In this regard, the theory of Theodor Viehweg, one of the forerunners of legal argumentation, is used; as well as Aristotle's rhetoric. A qualitative search is made of constant reasoning of the Federal Supreme Court judgments in direct actions of unconstitutionality to support the modulations of effects carried out. It also analyzes the use of the summary rite provided for in article 12 of Law 9.868/1999 by the Federal Supreme Court, which ends up doing, when the Supreme Court does not evaluate the required precautionary measure, with a delay in pronouncing on the unconstitutionality of the contested legislative act. The method used was the inductive, because the analysis of the qualitative data of the decisions of the Supreme Court was made for the construction of a general picture