Decadência administrativa e atos inconstitucionais: uma análise a partir do recurso extraordinário nº 817.338
The article adresses the issue of the decadence of administrative acts in case of unconstitutionality, based on the analysis of the Extraordinary Appeal nº 817.338 – awaiting judgment in the Supremo Tribunal Federal (STF) – Supreme Court – wich discusses the possibility of annulment of an administra...
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| Main Authors: | , |
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| Format: | Article |
| Language: | Portuguese |
| Published: |
2017
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| Subjects: | |
| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=6130186 |
| Source: | Revista de Investigações Constitucionais, ISSN 2359-5639, Vol. 4, Nº. 2, 2017 (Ejemplar dedicado a: maio/agosto), pags. 221-241 |
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| Summary: |
The article adresses the issue of the decadence of administrative
acts in case of unconstitutionality, based on the
analysis of the Extraordinary Appeal nº 817.338 – awaiting
judgment in the Supremo Tribunal Federal (STF) – Supreme
Court – wich discusses the possibility of annulment
of an administrative act by the Public Administration, once
a direct violation of the constitutional text is verified, even
if the decadential period provided for the article 54 of the
Federal Law nº 9.784/99 has elapsed. Here, it’s not intended
to verify the (un) constitutionality of the Administrative
Rule nº 2.340/03 issued by the Minister of Justice on december
9, 2003, nor it’s alleged lack of validity assumption
(motive) and the direct or indirect affront to the article 8 of the Transitory Constitutional Provisions’ Act. Nevertheless,
the article aim to discuss whether this acts, if recognized as
unconstitutionals, could have their effects stabilized over
time, in compliance with the provisions of the subsection
XXXVI of the article 5 of the Federal Constitution, based
on the debate on the extension of the duty-faculty of the
Public Administration to annul its own acts, as well as the
effects of the decadence within acts considered nulls, voids
or unconstitiutionals. It should be pointed out that, given
the particularities of the case and the absence of other specific
precedents, the Extraordinary Appeal nº 817.338 may
be the first case in which the Supreme Court will effectively
confront the conflict between the custody of trust versus the
empire of the constitutional order. The method of approach
will be the deductive, by the method of comparative procedure
and the technique of bibliographical and documentary
research, with the analysis of the legislation involved, the
doctrine on the subject and the precedents of the STF that
are important for the development of the work. |
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