A via processual cabível e adequada para a desconstituição de sentença estribada em lei supervenientemente declarada inconstitucional na jurisdição constitucional

AUTOR(ES)
DATA DE PUBLICAÇÃO

2005

RESUMO

The purpose of this study is to review the possibility of dissolving the effectiveness of a final judgment or decree rendered on the basis of a law that is later declared unconstitutional by the Supreme Court, ruling on the matter of constitutional jurisdiction. Firstly, the constitutional jurisdiction was reviewed, stressing the essential concepts required to understand the substance of the case, namely the general notions of constitutionality control by direct or diffuse means, further including the erga omnes and binding effects, as well as the applicability of rulings on constitutionality control, regarding prior decisions. There followed an explanation of the unconstitutional law nature, analyzing the concepts of validity, force and effectiveness, with the final conclusion that such law would not be valid. After such considerations, the study aimed at demonstrating that the unconstitutionality ruled by the Federal Supreme Court retroacts to reach the law from its very inception, as if it never were a part of the legal framework, rendering the law invalid and consequently null and void. Further considering the aspects of nullity in the realm of legal procedures, the study searched a distinction between legally inexistent acts and void acts. A legal classification of procedural defects of decisions was then made: the defects were subdivided into extrinsical and intrinsical defects, as arising from the proceedings or from the decision itself, respectively, and the decision was additionally described as legally inexistent or void, depending on the defect. Void decisions are contaminated by defects that stain their validity; nevertheless, they define a matter of res judicata, and may thus be rescinded. On the contrary, the legally inexistent decisions do not thrive in the legal world; and that which does not exist may not pass in rem judicatam, nor can it be rescinded. There followed an examination of the central core of the theme. What is the procedural defect tainting a decision based on grounds of an unconstitutional law - is it legally inexistent or null and void? It was then concluded that a decision rendered on the basis of an unconstitutional law will be legally inexistent, since it derives from a defect within the legal proceeding itself, namely the lack of cause of action due to the legal impossibility of the claim or, alternatively, of the decision itself, by lack of an essential requisite, that of adjudication, wherefore the material res judicata would lack force and effectiveness. In face of a decision deemed legally inexistent and not only void, to wit a decision which did not pass in rem judicatam, the study aimed at demonstrating that an action seeking a declaratory judgment of inexistence would be warranted, rather than a mere rescissory action, as the proper procedural path for dissolving the effectiveness of such decision

ASSUNTO(S)

direito processual civil acão declaratória de inexistência de sentença firmada em lei declarada inconstituicional na jurisdição constitucional processo civil

ACESSO AO ARTIGO

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