MODULATION OF EFFECTS IN DIFFUSE CONTROL OF CONSTITUTIONALITY
DOI:
https://doi.org/10.51891/rease.v10i11.17129Keywords:
Judicial Review. Modulation of Effects. Unconstitutionalization.Abstract
The modulation of the effects of a decision is a mechanism that allows the court to limit the efficacy of a declaration of unconstitutionality, making it effective either from the date of its final judgment or another moment set by the court. This paper analyzes the temporal modulation of effects and its applicability in the diffuse control of constitutionality, provided that there are reasons of legal certainty or exceptional social interest. The Brazilian legal system has made an exception to the traditional nullity theory of unconstitutional acts, moving towards the theory of voidability. This shift has raised questions regarding the constitutionality, legitimacy, scope, and mode of application of this norm. Therefore, this study aims to assess the constitutionality of the technique of temporal modulation of the effects of a declaration of unconstitutionality within the scope of diffuse control. The research method employed was bibliographic, involving the review of scientific articles, theses, dissertations, legislation, and case law. The deductive approach enabled the collection of relevant information on the issue, leading to the expected results concerning the constitutionality of the temporal modulation of the effects of decisions within diffuse control. This technique allows the Supreme Court (STF) to limit the temporal efficacy of its decisions, where a declaration of unconstitutionality may not have retroactive effects, thus preserving previously consolidated situations.
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Atribuição CC BY