RESUMÃO - Revisão da Lei de Introdução - Decreto-lei 4.657/42

Summary

This lecture provides an overview of the Law of Introduction to the Norms of Brazilian Law (Lei de Introdução às Normas do Direito Brasileiro). It covers key aspects such as the law’s start and end dates, revocation processes, principles like the obligation to comply with the law, and addressing gaps in legislation through analogy, customs, and general principles of law. Additionally, it explores the social function of law, the concept of retroactivity, territorial application of law, and the role of domicile in determining personal law. The lecture emphasizes the importance of understanding these foundational elements for legal practice in Brazil.

Takeaways

• 😀 The Law of Introduction to Brazilian Norms (LINDB) was originally known as the Law of Introduction to the Civil Code (Decree Law 4657/42) and was renamed by Law 12.376.
• 😀 Vacatio Legis: A law comes into effect 45 days after its official publication in Brazil. If applicable abroad, the period is 3 months.
• 😀 The principle of revocation explains that a new law can revoke or modify an existing one. Revocation can be express (stated in the law) or tacit (when the new law is incompatible with the old one).
• 😀 Repristination, or the automatic restoration of a law after its revocation, is not permitted in Brazil unless explicitly stated in the law.
• 😀 According to the Principle of Obligation, individuals are expected to know and comply with the law after its publication, ensuring legal stability in society.
• 😀 In case of gaps in the law, judges can apply analogy, customs, and general principles of law to fill these gaps. Analogy applies existing law to similar cases, while customs refer to practices not explicitly prohibited by law.
• 😀 The Social Function of the Law principle asserts that judges must apply laws considering social needs and the common good, not merely the letter of the law.
• 😀 The principle of non-retroactivity of the law means that laws affect only future actions, not past ones, unless explicitly stated otherwise. This respects the concepts of 'perfect legal acts,' 'acquired rights,' and 'things judged.'
• 😀 Territoriality indicates that Brazilian law applies within Brazil, but foreign laws may apply if they are relevant to the case involving foreigners.
• 😀 The principle of domicile determines the law applicable to a foreigner. It considers where the person resides, not where they were born, for issues like family law and personal status.

Q & A

What is the *Lei de Introdução às Normas do Direito Brasileiro* (Law of Introduction to Brazilian Law)?

It is a law that governs the introduction, application, and revocation of Brazilian laws. It was originally named the Law of Introduction to the Civil Code (Decree-Law 4657/42) and was later renamed by Law 12.376.

What is the significance of the *vacatio legis* period?

The *vacatio legis* period is the waiting period after a law is published before it comes into effect. In Brazil, it is generally 45 days unless stated otherwise. This period allows society and legal professionals to adapt to the new law.

How does the *vacatio legis* period differ for laws applied abroad?

For laws applied abroad, the *vacatio legis* period is 3 months after publication, as opposed to the 45-day period in Brazil.

What happens if a law is published to correct a previous law during its *vacatio legis* period?

If a law is published to correct a previous law during its *vacatio legis* period, the correction will take effect from the date of the new publication.

What is the distinction between *expressed revocation* and *tacit revocation* of a law?

Expressed revocation is when a new law explicitly states it revokes a previous one. Tacit revocation happens when the new law is incompatible with or fully regulates the subject of the old law, effectively rendering it revoked without direct mention.

What is repristination in Brazilian law?

Repristination occurs when a law that had previously revoked another law loses its validity, causing the revoked law to regain its effect. In Brazil, repristination is not automatic and only occurs if explicitly stated in the new law.

What is the principle of *obligatoriedade* in relation to Brazilian law?

The principle of *obligatoriedade* means that once a law is published, everyone is presumed to know it, and no one can claim ignorance of the law to avoid compliance. It ensures stability and effectiveness in the legal system.

What should a judge do if a legal case lacks a specific law to address it?

If there is no specific law addressing a case, the judge can apply analogy (comparing with similar cases), customs (practices accepted by society), or general principles of law to fill the gap.

What does the concept of 'function social of the law' imply?

The 'function social of the law' means that judges should apply the law in a way that considers social purposes and the common good, not just the strict text of the law. It allows for a more flexible interpretation of legal norms.

What is the principle of *irretroatividade* and how does it affect the application of new laws?

The principle of *irretroatividade* means that new laws generally apply only to future cases, not to past ones. However, if a law is retroactive, it cannot contradict established legal acts, acquired rights, or final court rulings.

How does the principle of territoriality apply in Brazilian law?

Territoriality in Brazilian law means that a law applies within the borders of Brazil. However, Brazil follows a moderate territoriality principle, where laws are applied based on a person’s domicile rather than their place of birth. This also applies to foreigners residing in Brazil.