A aplicação da técnica da modulação dos efeitos como forma garantia da isonomia das decisões judiciais em sede de controle difuso-concreto de constitucionalidade.

Abstract

This study aims to investigate the problem of the possibility of application of analog modulation technique called trial of the effects under the control of diffuse-concrete constitutionality, as legally provided for in the Brazilian town only for the abstractconcentrate control in accordance with art. 27 of Law No 9868/1999 and in art. 11 of Law No. 9882/1999, and recognize the consequences of their use by the courts, and determine which is the jurisdiction of the Senate in these cases, since this is the body constitutionally mandated to determine effects erga omnes by suspension of law declared unconstitutional by final decision of the Supreme Court. For this, we tried to define, through a historical approach, the origins of control of constitutionality Brazil, pointing out the influences that led aliens. Through deductive method, an analysis was undertaken on the design of unconstitutionality in the Brazilian constitutional court and its treatment, including effects that it could have for the courts. Using a bibliographic study of the doctrine and the jurisprudence of the documentary Supreme Court allowed a broad understanding on the issue, situation in which it was possible the examination of the main trial relevant to them, checking that, by considering the principle legal certainty to the invalidity of the law unconstitutional, the Brazilian constitutional system empowers the use of the modulation effects before the diffuse-specific control of constitutionality, in exceptional cases, to minimize the negative impact of social and legal nullity ab initio standard unconstitutional. Indeed, this new design on the unconstitutionality could provide the judge grants sufficient for the correct application of the law and maintain the security of social relations.