Post by xyz2900 on Feb 11, 2024 14:24:18 GMT 5.5
Since its creation in 1988, the large number of provisional measures issued highlights the deviation from the conception of what is urgent and relevant, necessary requirements for the adoption of provisional measures, as recommended in article 62 caput of the Federal Constitution. In addition to the problems related to the current lack of objective criteria to determine the effective configuration of constitutional requirements of relevance and urgency, the question arises, in the field of Tax Law, regarding the possibility or not of using the provisional measure for the institution or increase in taxes, especially if one takes into account that there was no express material provision in the Constitution regarding its use in this area before Constitutional Amendment 32, of September 9, 2001.
Amendment 32 having substantially modified the treatment previously given to the provisional measure, including establishing objective material limitations regarding its scope (non-existent at the time), providing for more stringent legal restrictions regarding its processing and effectiveness. , the discussion is far from over. This is because an Amendment – this extends to any other legislative type – cannot challenge the so-called Belize Email List immutable clauses without suffering from the vice of unconstitutionality. In the present study, the examination of the issue will be restricted to comparing the provisions of article 62, paragraph 2 of the Federal Constitution, with the constitutional provisions pertinent to the principles of generic legality (article 5, item II) and strict legality (article 150, item I), reserving, for another opportunity, the comparison of the provisions of article 62, paragraph 2, of the Federal Constitution, with the principle of precedence.
One cannot lose sight of the fact that the principle of legality typified in article 5 , item II, of the Federal Constitution, is a super-principle that has the status of a fundamental right. It radiates influence across all branches of Brazilian positive law, making it impossible to think about the emergence of subjective rights and related duties without the law stipulating them. As the primary objective of law is to regulate conduct, and it does so by creating correlative rights and duties, the relevance of this principle transcends any argument that seeks to praise it. The legality guideline translates a legal norm from a privileged position that stipulates objective limits. For tax law, however, that imperative takes on a more severe aspect, as can be seen from the wording of article 150, item I, of the Federal Constitution. In other words, any of the political persons of internal constitutional law may only institute taxes, that is, describe the matrix rule of incidence, or increase the existing ones, increasing the calculation base or the rate, through the issuance of law, a term used in its strictest sense.
Amendment 32 having substantially modified the treatment previously given to the provisional measure, including establishing objective material limitations regarding its scope (non-existent at the time), providing for more stringent legal restrictions regarding its processing and effectiveness. , the discussion is far from over. This is because an Amendment – this extends to any other legislative type – cannot challenge the so-called Belize Email List immutable clauses without suffering from the vice of unconstitutionality. In the present study, the examination of the issue will be restricted to comparing the provisions of article 62, paragraph 2 of the Federal Constitution, with the constitutional provisions pertinent to the principles of generic legality (article 5, item II) and strict legality (article 150, item I), reserving, for another opportunity, the comparison of the provisions of article 62, paragraph 2, of the Federal Constitution, with the principle of precedence.
One cannot lose sight of the fact that the principle of legality typified in article 5 , item II, of the Federal Constitution, is a super-principle that has the status of a fundamental right. It radiates influence across all branches of Brazilian positive law, making it impossible to think about the emergence of subjective rights and related duties without the law stipulating them. As the primary objective of law is to regulate conduct, and it does so by creating correlative rights and duties, the relevance of this principle transcends any argument that seeks to praise it. The legality guideline translates a legal norm from a privileged position that stipulates objective limits. For tax law, however, that imperative takes on a more severe aspect, as can be seen from the wording of article 150, item I, of the Federal Constitution. In other words, any of the political persons of internal constitutional law may only institute taxes, that is, describe the matrix rule of incidence, or increase the existing ones, increasing the calculation base or the rate, through the issuance of law, a term used in its strictest sense.