Da cessação automática dos efeitos temporais da coisa julgada: entre a modificação de sentido do artigo 5º, inciso XXXVI, da Constituição e a proteção deficiente da coisa julgada

Abstract

On the occasion of the conclusion of the judgments of Extraordinary Appeals nº 955.297/BA and 949.227/CE, the Federal Supreme Court formed the binding decision-making pattern related to Themes 881 and 885 of the General Repercussion, in order to allow the automatic cessation of the effects of res judicata in the time on successive tax legal relations, in the event of a decision of (un)constitutionality of a tax charge supervening the formation of the individual res judicata arising from concentrated constitutionality control or diffuse constitutionality control exercised under the general repercussion system. The understanding carried out by the STF on res judicata represents a novelty, with no evident parallel in comparative law or in the precedents of the Superior Courts on the subject. Given its binding character on other jurisdictional bodies, its application will be mandatory in all judicial cases that fit within the scope of the decision. The research problem can be translated into the following question: the case of the automatic cessation of the temporal effects of the res judicata in the event of a supervening decision of the STF, in concentrated or diffuse control in terms of general repercussion, on the (un)constitutionality of tax exaction in the tax legal relations of successive treatment does it represent a constitutional mutation of article 5, item XXXVI, of CF/88 or does it represent a deficient protection of res judicata? The research will use the hypothetical-deductive data approach method. The procedural methods to be used in the research are the historical method, the monographic method, the phenomenological method and the systematic method. Documentary and bibliographic research will be used as research techniques, with emphasis on the analysis of books, articles, dissertations, theses, legal norms and judicial and administrative decisions. The theoretical frameworks that will support the research will be the structuring legal theory (Müller), philosophical hermeneutics (Gadamer), law as integrity (Dworkin) and the Hermeneutic Critique of Law (Streck). The hypothesis to be supported in this research will be that no, the case of the automatic cessation of the temporal effects of the res judicata in case of supervening decision of the STF, in concentrated or diffuse control in general repercussion, on the (un)constitutionality of tax exaction in successive tax legal relations does not represent a constitutional mutation of article 5, item XXXVI, of CF/88, as it does not represent a solution that provides adequate protection to res judicata, but rather a deficient protection, which is why it is unconstitutional, in addition to representing an activist solution adopted by the Federal Supreme Court.