CONTROLE de CONSTITUCIONALIDADE: resumo fácil de entender | Cíntia Brunelli

Summary

In this video, the speaker dives into the concept of constitutional control, explaining its importance in ensuring that laws and norms align with the constitution. Key topics include the hierarchy of the constitution, the different types of unconstitutionality (action and omission), and the distinction between preventive and repressive control. The speaker also highlights the differences between diffuse and abstract control and discusses the role of constitutional amendments. The video aims to simplify these complex legal concepts for beginners, encouraging viewers to explore and understand the legal system more confidently.

Takeaways

• 😀 Constitutional control is a mechanism to ensure laws and acts comply with the Constitution.
• 😀 The Constitution holds the highest position in Brazil's legal system and cannot be contradicted by ordinary laws.
• 😀 The two key principles of constitutional control are the supremacy and hierarchy of the Constitution and its rigidity.
• 😀 Laws that contradict the Constitution are considered invalid and have retroactive effects, known as 'efeito ex tunc.'
• 😀 The Supreme Federal Court (STF) can modulate the effects of an unconstitutional law to protect legal certainty and social interest.
• 😀 There are two main types of constitutional control: control by action (declaring a law unconstitutional) and control by omission (failure to legislate).
• 😀 Control by action can result in a law being struck down, while control by omission addresses the lack of necessary legislation for constitutional provisions.
• 😀 Preventive control occurs before laws are enacted, and repressive control happens after the laws are promulgated.
• 😀 Repressive control can be carried out by the judiciary through 'concrete' (individual cases) or 'abstract' (general assessment) means.
• 😀 The Action of Direct Unconstitutionality (ADI) is one of the most famous legal mechanisms for challenging unconstitutional laws.
• 😀 Constitutional amendments can also be challenged if they violate fundamental clauses or the proper legislative process, and they are subject to constitutional review.

Q & A

What is the concept of 'controle de constitucionalidade' (control of constitutionality)?

It is a legal mechanism used to check whether laws and other normative acts comply with the constitution. It ensures that no law contradicts the constitution, as it is the highest legal authority in the legal system.

What are the two key assumptions of the control of constitutionality?

The first assumption is the 'hierarchy or supremacy of the constitution,' which means no law can contradict the constitution. The second assumption is the 'principle of constitutional rigidity,' meaning the constitution is harder to amend than regular laws.

What is the effect of a declaration of unconstitutionality?

When a law is declared unconstitutional, it is considered null and has retroactive effects. This means that its effects are erased as if the law never existed, unless there is a modulation of effects.

What is 'modulação dos efeitos' (modulation of effects)?

It refers to the practice of adjusting the temporal effects of an unconstitutional law to preserve legal security and social interests. The Supreme Federal Court (STF) can decide that the effects of the declaration of unconstitutionality apply only from the present or future.

What are the two types of unconstitutionality in terms of actions?

There is unconstitutionality by action, which occurs when an unconstitutional normative act is enacted, and unconstitutionality by omission, which happens when there is a lack of legislation to regulate a new constitutional provision with limited efficacy.

What is the difference between 'controle difuso' (diffused control) and 'controle concentrado' (concentrated control)?

Diffused control can be performed by any judge in a concrete case, meaning it involves real, specific situations. Concentrated control, on the other hand, is done by higher courts like the STF (Supreme Federal Court) or State Courts, and it analyzes the constitutionality of laws in abstract terms, without a concrete case.

What does 'controle preventivo' (preventive control) involve?

Preventive control checks the constitutionality of laws or acts before they are enacted. It can be performed by the Executive, Legislative, or Judiciary branches, such as through vetoes, legal opinions, or injunctions.

What is 'controle repressivo' (repressive control)?

Repressive control occurs after a law or act has been enacted and focuses on declaring it unconstitutional. This control is solely carried out by the judiciary and can be either diffused or concentrated.

What is the significance of the 'cláusula de reserva de plenário' (clause of plenary reservation)?

This clause requires that declarations of unconstitutionality must be made by the absolute majority of the plenary members of a court, not by a smaller chamber or individual judge.

Can constitutional amendments be declared unconstitutional?

Yes, constitutional amendments can be declared unconstitutional if their content violates 'cláusulas pétreas' (immutable clauses) or if they do not comply with the legislative procedures outlined in Article 60 of the Constitution.