Writ of Mandamus against Judicial Acts

By: André Elali
andre elali

In view of the high complexity of the legal system and the social and economic problems posed, it has been common, in many cases, to make judicial decisions with argumentative excesses and / or lack of logical coherence. This is often the case in several legal branches that affect the rights of property and liberty.

As a rule, each judicial act should be challenged by an appeal regulated in the procedural system. Since the 1939 Procedural Code, one of the principles applicable in Brazil is that of Uniqueness, Singularity or Unrecoverability of Appeals, which should be considered as a general principle on appeals in all spheres of Brazilian law (civil procedure, criminal procedure, social security , labor, administrative, etc.).

It implies that, for each appealable judicial act, there is an own remedy provided for in the legal system, leading to the conclusion that, as a rule, it is forbidden for the party to use more than one appeal to challenge the same decision.

In general, the rule is that, for each judicial act, a single appropriate appeal is appropriate, that is to say, no more than one appeal may be lodged against the same decision. In this sense: “The second infraconstitutional principle I highlight is that of unrecoverability, sometimes also called uniqueness or uniqueness. Its significance is that each jurisdictional decision challenges its contrast by one and only one appeal.

Like this:

Each appeal, as it were, has the ability to control certain jurisdictional decisions to the exclusion of the others, and this is the nodal point of the principle being prohibited from concurrently filing more than one appeal to achieve the same purpose. ”[1]

In the same context, therefore, it is understood that, “According to that rule, it is not possible to use two appeals simultaneously against the same decision; For each case, there is a suitable resource and only one. Subject to the exceptions mentioned below, the lodging of more than one appeal against a decision shall render the action brought last inadmissible. ”[2]That is why, therefore, the courts have been deciding[3].

To appeal to ratio decidendiIn the event of a decision, there is a need for the exhaustion of the court service, which cannot be regarded as closed when there is a possible appeal with the possibility of infringement. This is the understanding verified in several cases considered by the Superior Court of Justice and several Courts of Justice.[4].

In a very recent precedent, the Superior Court of Justice has established the case-law view that the simultaneous filing of more than one appeal by the same party and against the same contested decision prevents the processing of those appeals against which the first appeal was lodged:INTERNAL DECLARATION ON THE DECLARATION IN SPECIAL FEATURE. JUDGMENT OF ACTION AND APPEAL ON THE SAME DECISION. OFFENSE TO THE PRINCIPLE OF UNIRRECORRIBILITY. OCCURRENCE. CONSUMER PREVENTION AS TO THE SECOND APPEAL. UNKNOWLEDGE OF APPEAL. STJ. UNPROVED FEATURE.1.

In the hypothesis under consideration:

STJ Plenary Statement No. 2 applies: “Appeals based on CPC / 1973 (relating to decisions published up to March 17, 2016) shall be subject to the admissibility requirements as provided therein, with the interpretations given , until then, by the jurisprudence of the Superior Court of Justice. ”2. In this case, an interlocutory appeal was filed against the judgment.

The Court of origin was not aware of the appeal because it offended the principle of unrecorrectability and because the arrest occurred at the time the first appeal was lodged, namely the interlocutory appeal. 3. The judgment under appeal ruled in accordance with the case-law of the STJ that the bringing of two actions by the same party and against the same decision precludes knowledge of the second appeal, in view of the consumptive estoppel and the principle of unrecoverability.

Incidence of Precedent 83 / STJ. 4. Internal appeal dismissed. ” (STJ - AgInt at AREsp: 867675 MG 2016 / 0042591-8, Rapporteur: Minister LÁZARO GUIMARÃES (CALL OF THE TRF 5th REGION), Judgment Date: 07/06/2018, T4 - FOURTH CLASS, Publication Date: DJe 15 / 06/2018) - (purposive emphasis).

 On the other hand, there are situations of violation of fundamental rights that can cause irreparable damage or difficult to repair. Here, the concept of fundamental rights includes property, free enterprise, free competition, consumer protection, the environment, and the valorization of human labor, among other elements that guide the economic order. It is also important to highlight the statusof individual and collective freedoms that are corollary of constitutional commandments.

In cases:

Where the system endangers the exercise of rights, the procedural feasibility of managing the Writ of Mandamus to correct the failures of the system itself should be analyzed. Therefore, notwithstanding the procedural rule is clear and the Superior Courts have plenty of jurisprudence that an appeal should be brought against the court, writConstitutional law is presented as a valid instrument to depart, based on the constitutional order, any damage to rights. At this point, it is not any decision that is amenable to mandamus. The court decision against which it is based via the writit must have certain characteristics and in a specific context.

The Constitution establishes, in its art. 5th, that “LXIX - a writ of mandamus shall be granted to protect liquid and certain right, not supported by“ habeas corpus ”or“ habeas-data ”, when the person responsible for the illegality or abuse of power is a public authority or legal entity agent in the exercise of powers of the Government; […]. ”By regulating the proper procedure of the writ, Law no. 12.016 / 2009 provides: “Art. 1 A writ of mandamus shall be granted to protect liquid and certain right, not supported by habeas corpus or habeas data, whenever, unlawfully or with abuse of power, any individual or legal entity is violated or there is a fair fear of suffering it. authority, whatever its category and whatever functions it performs. ]

Paragraph 1. The authorities, for the purposes of this Law, are equivalent to representatives or bodies of political parties and administrators of local authorities, as well as the leaders of legal entities or natural persons in the exercise of their powers, only in respect of concern these attributions.

Paragraph 2. An injunction against commercial management acts practiced by the administrators of public companies, mixed capital companies and public service concessionaires is not subject to an injunction. ”

Note, as appropriate, that the management of writit is restricted to hypotheses of absurd violation of the legal order, with the improper application of legal provisions to non-existent factual premises. For no other reason, the judiciary admits, in certain situations, the use of the writ constitutional:

SUMMARY: ORDINARY SECURITY APPEAL. JUDICIAL ACT. EXCEPTIONALITY CONFIGURED. EXPRESSES ILLEGALITY. HARMFUL THIRD (SUMMARY No. 202 / STJ). RESOURCE PROVIDED. SECURITY GRANTED.

1. Out of normal circumstances, majority doctrine and jurisprudence allow warrant management and security against judicial act, at least in the following exceptional cases: a) a manifestly unlawful or teratological decision; b) court decision against which no appeal may be made; c) to have suspensive effect the appeal devoid of such attribute; and d) when brought by a third party harmed by a court decision.

2. In the kind, the judicial act appointed as coercing proves to be teratological, because, absent from legal grounds, granted, against a third stranger to the dispute, without the least contradictory, request for restitution of values without even considering listening to the financial institution impetant about the origin and ownership of the claimed financial assets, contrary to the principles of the contradictory, broad defense and motivation, colors of Due Process. […] 4. Appeal provided to grant security, with the act of being appointed as a co-worker being revoked. ” (STJ - SAFETY COMMAND APPEAL No 49.020 - SP (2015 / 0199845-0), Rapporteur Minister Raul Araújo).

The Labor Court itself acknowledges that, in cases of abuse and illegality, the implementation of the mandamus as constitutional protection of rights[5].

Therefore, it is understood:

These are requirements for fitting and granting writ against judicial act: i) that there is an abusive and illegal act that violates the legal order; ii) that said judicial act is teratological; iii) that the act violates certain net right (pre-constituted proof); and iv) what use of the mandamus be on time for your exercise.

Cases of judicial decisions inconsistent with the legal order that violate social and economic rights, which start from non-existent and disconnected premises, are subject to the writ. As an example, we may cite cases of asset blocking decisions by presumption and generalization, by non-existent and unproven “economic group”, unproven and unfair fiscal and / or precautionary measures and logical coherence.

The Federal Regional Court of the 5th. Region, examining the issue, has defined a line of understanding that departs from the Writ of Mandamus in cases that do not involve teratological decisions[6]. In cases involving disproportionate acts, with disconnection between means and ends, the Writ of Mandamus is in the light of that Court.[7].These cases can then be qualified as having teratological decisions, that is, inappropriate / disproportionate and inconsistent decisions with correct factual and legal assumptions.

The unlawful act and coercion must therefore be considered when it grossly violates the material and procedural law and, directly, the Constitutional Charter. Establish items LIV and LV of art. 5 of the Federal Constitution that no one shall be deprived of his liberty or his property without due process of law, in which - be it judicial or administrative - the contradictory and the broad defense shall be assured.[8].

 Inter alia

Consideration should be given to the economic effects of making legal decisions.[9]with the help of the Law and Economics method[10]to rule out any arbitrary claim, including the adoption of the Law of Introduction to the Rules of Brazilian Law (Law 13.655, of April 25, 2018).

 The legal order protects the rights of economic agents to maintain a minimum balance consistent with the economic and social order provided for in art. 170 of the Constitution. In this sense, it is evident that the Mandamus to suspend the effects of an illegal act that violates fundamental rights such as property, economic freedom, due process, etc.

As Tércio Sampaio Ferraz Jr. warns, legality imposes that state activity can only be exercised on the basis of law, with the middle / end relation being linked to the notion of law as the medium / condition of the activity itself (end).[11]. The author argues: “the sense of the legitimacy of legality sees in law not so much a condition and a limit, but basically as an instrument for the exercise of administrative activity”, that is, “in the solidarity between means and ends, hence the reasonableness of the law. administrative activity, then submitted to an evaluation of its efficiency ”, having the state acts that submit to the so-called“ judgments of reality (evaluation of policies of implementation of objectives, adequacy of the chosen means in the face of the proposed purposes). ”[12]

If the judicial act starts from non-existent premises, endangering the search for material and formal truth, it incurs practices contrary to transparency and the search for greater certainty in legal relations.[13]. The illegal act, therefore, qualifies in such cases as teratological and inappropriate / disproportionate, implying restrictions of fundamental rights, such as professional and / or economic freedom, corollary of free enterprise and free competition (Art. 170, CF). . As Joseph Raz points out, law must ensure that people plan and shape their future, while respecting their autonomy.[14]. After all, "Law is right or not right," as Norberto Nobbio had provoked[15].

In summary, therefore:

As the teratological court decision, in view of the protection of the rights and the possible risk of damage, a Writ of Mandamus will be issued. And the teratological decision is that which is abusive, inconsistent with the legal order because it is detached from appropriate factual and legal premises, thus violating the rule of law.[16] proportionality, often labeled as a principle of German origin (Verhältnismässigkeitsprinzip),mechanism for controlling state actions that protects the fundamental rights of citizens and economic agents.

Serving as a balancing instrument between means and ends of state actions, proportionality, as we know, is based on the basic pillars: adequacy (Geeignetheit), need (Erförderlichkeit)and proportionality in the strict sense (Verhältnismässigkeit). Suitability, here, is synonymous with the combination of rational and non-arbitrary criteria.[17].

[1]See BUENO, Cassio Scarpinella. Civil procedural law manual. 4. ed. Hail: Sao Paulo, 2018.

[2]See DIDIER JR, Fredie. DA CUNHA, Leonardo Carneiro. Course of Civil Procedural Law, Ed. Jus Podivm, 13. ed., P. 110

[3]“This Court has already established its understanding that the filing of a grievance and the request for reconsideration against the same monocratic decision violates the principle of appeal uniqueness. Indeed, the principle of unrecoverability precludes the possibility of bringing more than one appeal against the same court decision, except in cases expressly subject to the law. ”

(STF - AgReg in RE with Ag No. 933.518 - SP. Rel. Min Luiz Fux. Judged on October 28, 2016); “DECLARATION BOARDS IN EXTRAORDINARY DECLARATION APPEAL. CRIMINAL MATTERS. DECLARATION BOARDS AND REGIMENTAL APPROACH. Simultaneous interposition against the same decision. INADMISSIBILITY. UNIRRECORRIBILITY PRINCIPLE. NO KNOWLEDGE. 1. In accordance with the principle of non-appealability, it is inadmissible to bring two actions simultaneously against the same decision, save as otherwise provided by law. 2. Reporting embargoes not known. ”(STF - ED ARE 927.927 - DF. 1st class. Min. Rel. Edson Fachin. Judged on 15.03.2016).

Aggravations:

[4]“REGIMENTAL INJURY - PRINCIPLE OF UNIRRECORRIBILITY - SIMILAR INTERPOSITION OF DECLARATION AND DECLARATION BOARDS - IMPOSSIBILITY - UNKNOWN AGGREGATION. 1. Due to the principle of unrecoverability, also known as the uniqueness or uniqueness of the appeal, the simultaneous interlocutory appeal and embargoes of declaration by the same party and in the face of the same decision shall not be accepted, in which case recognition of the consumptive estoppel in relation to the appeal subsequently lodged.

2. Grievance not known. ”(STJ - AgReg in REsp No. 797,419 - PR. Rel. Min. Massami Uyeda, judged on August 14, 2007); “SUMMARY: CIVIL PROCEDURAL LAW. Simultaneous interposition of declaratory and interlocutory embargoes on distinct parts. SAME OBJECT. AGAINST THE PRINCIPLE OF UNIRRECORRIBILITY. CONSUMED PREFERENCE CONFIGURED IN RELATION TO SECOND APPEAL (DECLARATORY EMBARGES). UNKNOWN FEATURE.1. The principle of unrecoverability, also called the uniqueness of the appeal or uniqueness, subsists in our civil procedural system.

This principle establishes the premise that each decision contains a single appeal. 2. In view of the simultaneity of the appeals and the similarity of their grounds, the right of appeal of the embargoing party has been exhausted with the interposition of the first (regimental appeal), which will be duly analyzed. 3. The advent of the second appeal (embargoes of declaration) gives rise not only to disobeying the principle of recursal oneness, but also to the occurrence of consumptive estoppel.

4. Undeclared declaratory charges ”(ECJ - ED in AgReg No. 7369-28.2008.8.06.0000 / 1. Rel. Des. José Arísio Lopes da Cosa. Judged on April 22, 2010); “APPLICATION FOR INSTRUMENT - PROCEEDINGS OF TWO APPEALS AGAINST THE SAME DECISION - CONSUMER PREVENTION - PRINCIPLE OF UNIRRECORRIBILITY - UNKNOWLEDGE.

It is not known about the interlocutory appeal filed in the face of a decision that has already been challenged by another appeal filed by the same party, leading to the consumptive preclusion of its right to appeal, since both appeals seek the reform of the same decision and, as the principle of unrecoverability, only one appeal is admissible for each decision. ”(TJMG - AI 10241170023220001 MG. Rel. Des Claret de Moraes. Judged 13.11.2018. Published 23.11.2018); “Interlocutory appeal - Search and seizure - Interposing more than one appeal against the same decision - Breach of the principle of appeal.

In view of the principle of unrecoverability, unless expressly provided for, it is not possible to lodge more than one appeal in order to combat identical judicial pronouncement, resulting in consumptive estoppel. ”(TJMG - Interlocutory Appeal-Cv 1.0024.13.128378- Rel. Des. Vicente de Oliveira Silva Judged on May 24, 2016. Published on June 17, 2016); “CIVIL PROCEDURE - JOINT SENTENCE - PRINCIPLE OF UNIRRECORRIBILITY - UNKNOWLEDGE OF THE SECOND CLAIM IN THE SAME DECISUM - CPC, ART. 507

The filing of successive (or concurrent) appeals by the same party, in the face of the same court decision, implies the lack of knowledge of those filed last, in compliance with the principles of unrecorrectability and consummation ”. (TJSC - Civil Appeal No. 0306718-86.2017.8.24.0005. Balneário Camboriú. 5th Chamber of Civil Law. Rel. Luiz Cézar Medeiros. Judged on 18.12.2018); “PLEASURING PENAL PERFORMANCE. DUPLICITY RESOURCE. CONSUMER PREVENTION. UNIRRECORRIBILITY PRINCIPLE. NO KNOWLEDGE OF RESOURCE.

According to settled case law in this Court:

The filing of two appeals by the same party against the same decision precludes the examination of what has been filed last, in view of the consumptive estoppel and the observance of the principle of unrecoverability of decisions (Superior Court of Justice, AgRg no AREsp No 376.731 / RJ , Rel. Min. Marco Aurélio Bellizze, Fifth Class, July 21, 2014). UNKNOWN APPEAL. ”(TJSC - Criminal Enforcement Order No. 0009216-58.2018.8.24.0018. 5th Criminal Chamber. Rel. Des Cinthia Beatriz da Silva Bittencourt Schaefer. Judged on 01.11.2018); “DECLARATORY DECLARATIONS IN APPLICATION OF INSTRUMENT. PERFORMANCE OF SENTENCE. UNIRRECORRIBILITY PRINCIPLE. NO KNOWLEDGE.

In the present case, previous declaratory embargoes have already been filed by the Public Treasury against the same decision, appeal filed days before the present embargoes, which will be considered at the next judgment session of this Chamber. The principle of unrecoverability applies, whereby the party may not exercise the right to appeal against judgments more than once, and the first appeal is consummated. Thus, in view of the unrecorrectability, the filing of a new appeal, having as object the same decision object of the present declaratory embargoes. Declaratory embargoes not known. ”(TJRS - ED 70074349051 RS. 25th Civil Chamber. Rel. Des. Eduardo Kothe Welang. Judged on 19.07.2017. Published on 26.07.2017).

[5]“SUMMARY: Incident of disregard of legal personality. Non-compliance with the procedural rite. Intelligence of articles 133 to 137 of the Code of Civil Procedure, in line with Normative Instruction No. 39 of c. TST as well as novel art. 855-A of the CLT. The incident is urgently launched, otherwise the principles of contradictory and broad defense will be infringed. Security granted. ”(TRT - 21st Region, Writ of Mandamus No. 0000347-96.2018.5.21.0000, Rapporteur Judge Eridson João Fernandes Medeiros, Full Court, Judged on 24/05/2019); “SUMMARY:

1. Preliminary objection of inadmissibility of mandamus, raised by the Public Prosecution Service, on the grounds of its own legal remedy. 1.1. The protection filed in the court of law took place in a precautionary manner, inhibiting the judicial enforcement (whether for illegality, or for teratology of the coercive act), when, without any incident of disregard of legal personality and even in the presence of pledged immovable property (Viação Nordeste garage) ordered several steps to prevent the plaintiff's estate from being emptied, and it is appropriate to handle the writ of mandamus, as mentioned, with the purpose of safeguarding the right to property until, in its own place (either in embargoes). enforcement, whether in third party embargoes or in case of disregard of legal personality, which was the case), there is the exhaustion of the debate of the applicant's responsibility to appear in the enforcement. 1.2. Preliminary rejected.

2. Merit. Writ of mandamus. Order of attachment, blocking and removal of assets. Third executor, spouse of one of the principal executor's partners. No previous installation of any depersonalization incident (direct or reverse), capable of contradictory and broad defense. Guarantee of the court for the attachment of the property of the executed. Court intervention. Monthly deposit agreement. No news of non-compliance. Granting of the order, to stop the coercive act, as to the blocking, attachment and unavailability of any assets of the plaintiff, until the judgment of the disregarding incident subsequently installed by the court of execution.

2.1. Following the decision rendered (and effectively enforced by the executing judge - which ordered the release of assets of the plaintiff), the co-ordinating authority ordered the installation of the disregard of legal personality incident, in which the partners and other persons will be debated. involved in the labor execution carried out, and the scope of the legal action, from then on, will be restricted to the patrimonial protection of the applicant until the judgment of the mentioned incident, in the form of arts. 133 to 137 of the NCPC. 2.2. Security partially granted. ”(TRT - 21st Region, Writ of Mandamus No. 0000192-93.2018.5.21.0000, Rapporteur Judge Ronaldo Medeiros de Souza, Full Court, Judged on 22/02/2019).

[6]“Menu. CRIMINAL PROCEEDINGS. SAFETY COMMAND. SECURITY MEASURE. ARREST Inappropriate way. 1. The judicial decision that defends a precautionary measure of arrest is definitive in procedural terms. Therefore, the appropriate procedural means to challenge it is the appeal, according to art. 593, III, of the Criminal Procedure Code. 2. The writ of mandamus is not a substitute for an appeal (Precedent 267 of the Federal Supreme Court).

3. It is not the case of those who authorize the relaxation of this summary, since the judicial decision is not teratological, that is, it is not aberrant, unfounded or deeply divorced from proof or law. 4. Precedents of this Court: MSTR No 102,372 / EC; MSTR No. 102,406 / EC; MSTR No. 97,620 / RN; MSTR No. 101,381 / AL. STJ Precedents: AgRg in RMS No. 30,352 / RJ; AgRg in RMS No. 38,959 / DF; RMS No. 28,979 / RJ. 5. Writ of Mandamus not known. ”(TRF 5 - Writ of Mandamus - 102892 - Case Number: 00018664720124050000 - Date of Judgment: 08/20/2013 - Judging Body: Second Class - Rapporteur: Federal Judge Fernando Braga).

[7]“SUBJECT: CRIMINAL. SAFETY COMMAND. SECURITY MEASUREMENT OF Hijacking. Unproportionality. CONCESSION OF SAFETY. 1. This is a writ of mandamus filed against an act attributed to MM. Federal Judge of the 14th Court of SJ / PB that, in the case of the seizure of kidnapping measure No. 0000849-62.2013.4.05.8205 (incidental to the criminal action No. 0000850-47.2013.4.05.8205), granted the injunction there determined determining the constriction of all movable and immovable property of defendants (including plaintiffs), in addition to blocking financial assets (via BACENJUD) and restriction of vehicle transfers (through RENAJUD) up to R$ 1,044,684.11 (one million, forty-four thousand, six hundred and eighty-four reais and eleven cents), on the ground that it would be “impossible at this time to define the personal liability of each defendant, all of which should account for the total damage caused to the public coffers”;

2. The plaintiffs are brothers and partners who are owners of a certain economic group and have been denounced - together with other businessmen and some public agents - for the alleged practice of the offenses capitalized in Law No. 8.666 / 93, Art. 89, sole paragraph, and Decree. -Raw No 201/67, Art. 1 I, on the occasion of the bidding procedures related to the Invitations 10, 11, and 12/2007, 12/2008, in addition to Pregão 09/2008, triggered in the Municipality of Santa Terezinha / PB , for the purchase of medicines and medical-hospital products, using resources from the Primary Health Care Program (PAB), the Family Health Program (PSF) and the Unified Health System (SUS);

3. Admittedly, the kidnapping measure, pursuant to Decree-Law 3,240 / 41, is only justified in proceedings referring to crimes resulting in damage to the purse. In the case of the case, however, the amount considered by the judge as damage allegedly caused to the public coffers would total R$ 1,044,684.11 (one million, forty-four thousand, six hundred eighty-four reais and eleven cents), which, In fact, it refers to the sum of values related to various bidding procedures performed in the Municipality of Santa Terezinha / PB in 2007 and 2008, and many of them without indicating that the applicants had participated;

4. It is not logical to understand that the value of the alleged losses resulting from all bidding procedures and the respective contracts without the participation of the plaintiffs is considered for the sequestration of their assets, as was done in the decision of the first degree. If the criminal proceeding under consideration covers multiple actions, serving as a link between the defendants of the municipal administration, the private entrepreneur who would have participated in part of the facts cannot be held liable for the payment of any losses arising from independent facts. It reaches the frenzy of delirium intending to kidnap one million reais from those accused of participating in facts that would have caused damages of R$ 36,000.00;

5. It is important to emphasize, from another angle, that it is not discussed in the criminal action the non-supply of medicines and medical-hospital materials, but rather the regularity of hiring and overpricing as to the values practiced.

From the point of view of the magnitude of the possible damage caused to the purse, the present quarrel would be the difference between the cost of the products without the correct bidding (as it would have happened) and that experienced if there was a regular dispute. , and this is considered to be as much damage as possible;

  1. Report 117/2014 (which analyzed and reported the amounts of overpricing of the drugs in question), which, as regards Invitation No. 12/2007, detected overpricing totaling R$ 18,898.29 (eighteen thousand eight hundred and ninety-eight reais and twenty-nine cents), and for Invitation No. 12/2008, R$ 17,067.53 (seventeen thousand, sixty-seven reais and fifty-three cents) at the time;
  2. CONCESSION OF THE ORDER UNDER THE SUBSIDIARY APPLICATION TERMS, determining that the constraints fought by the presentwriting limit to the amount of the damage indicated - R$ 35.965,82 (thirty five thousand, nine hundred sixty five reais and eighty two cents) - , in line with the opinion of the Regional Attorney General's Office. ”(TRF 5 - Writ of Mandamus - Case: 08003753020164050000 - Document Code: 400452 - Date of Judgment: 04/13/2016 - Judge Body: 2nd Class - Rapporteur: Federal Judge Walter Nunes da Silva Júnior).
  3. In the same vein: TRF5 - Writ of Mandamus - 103140 - Case: 00099238320144050000 - Judgment Date: 03/19/2015 - Judging Body: First Class - Rapporteur: Federal Judge José Maria Lucena; TRF 5 - Writ of Mandamus - Case: 08019585020164050000 - Judgment Date: 06/27/2016 - Judging Body: 2nd Class - Rapporteur: Federal Judge Vladimir Carvalho.

[8]“Art. 5º All are equal before the law, without distinction of any nature, guaranteeing to Brazilians and foreigners resident in the country the inviolability of the right to life, liberty, equality, security and property, as follows: (… ) LIV - No one shall be deprived of liberty or his property without due process of law; LV - the litigants, in judicial or administrative proceedings, and the accused in general are assured the contradictory and broad defense, with the means and remedies inherent to it; (…) ”.

[9]“Both law and economics, as social knowledges, proceed by the relationship of discontinuous but analogous elements, although they can establish relations of causality and imputation, constant evident or normative structures between them. Both, in these terms, do not capture the human being as nature, but the human being as positivity (being who speaks, who exchanges, who produces, who regulates his own knowledge).

That is, its object, as human sciences, is not man, but the effectiveness of their relationship, in which they participate and in which they reflect. And it is at the intersection of evidence and norms as a political project that economic law is delineated. ”Cf. Tercio Sampaio Ferraz Junior. Preface: inFabio Nusdeo. Economics Course - Introduction to Economic Law. 3. ed. Sao Paulo: RT, 2001, p. 10

[10]See Richard A. Posner. Frontiers of Legal Theory. Cambridge / Massachusetts: Harvard University Press, 2004, p. 31 ff. In the same vein: “Economics has changed the nature of legal scholarship, the common understanding of legal rules and institutions, and even the practice of law. […] Economics provided a scientific theory to predict the effects of legal sanctions on behavior. To economists, sanctions look like prices, and presumably, people respond to these sanctions much as they respond to prices. ”Cf.Robert Cooter & Thomas Ulen. Law and Economics. 4. ed. The Addison-Wesley series in Economics, 2004, p. 2-4. Letácio Jansen reports that before 1960, the school of Law and EconomicsIt was limited to studying monopolies and some aspects of tax law, corporate law, and the regulation of utilities.

Over time, his scholars began to apply his propositions to various other branches of law. According to him, “just as Economic Law deals with State intervention in the economic domain […], the Economic Analysis of Law, focused primarily on the examination of norms of conduct, would focus on the study of 'intervention'. of Economy in the State. ”Cf. Letácio Jansen. Introduction to Legal Economics. Rio de Janeiro: Lumen Juries, 2003, pp. 3-4.

[11]Tertius Sampaio Ferraz Jr. Regulatory Agencies: legality and constitutionality. In: Tax and Public Finance Magazine, n. 35, Year 8. São Paulo: RT, 2000, p. 6

[12]Tertius Sampaio Ferraz Jr. Regulatory Agencies: legality and constitutionality. In: Tax and Public Finance Magazine, n. 35, Year 8. São Paulo: RT, 2000, p. 6

[13]“Security is first and foremost a radical human anthropological need and 'knowing what to hold on to' is a constitutive element of individual and social aspiration for security; common root of their distinct manifestations in life and the foundation of their raison d'être as a legal value. ”Cf. Antonio Enrique Perez Luño. The Legal Security. Barcelona, Ariel, 1991, p. 8. Free translation.

[14]Joseph Raz. The Authority of Law. Essays on Law and Morality, Oxford, Clarendon, 1979, p. 221

[15]Norberto Bobbio. Certezza del Diritto is a Myth?, inInternational Rivista of the Philosophy of the Right, n. 28, p. 150

[16]Cf. Virgílio Afonso da Silva. The Proportional and the Reasonable. In: Review of the Courts 798 (2002): 23-50.

[17]See Neil MacCORMICK. Legal Argumentation and Theory of Law, P. 326.

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André Elali

Partner
PhD in Public Law from UFPE, Master from Presbyterian University Mackenzie (SP). Postdoctoral Internship at the University of Lisbon (Portugal). He is Assistant Professor at the Department of Public Law at UFRN and Visiting Scholar at Max-Planck-Institüt für Steuerrecht (Munich, Germany) and Queen Mary University of London (United Kingdom). Author and coordinator of dozens of books in the tax and regulatory area.