Súmula vinculante: análise da interferência do judiciário na atividade legislativa.

Abstract

The structure of a democratic state in its design is the separation of state functions in the manner proposed by Montesquieu, is considered inseparable element of their understanding, such powers of state are found distributed in three harmonic functions and independent of each other, an idea approved by the Constitution the federal 1988. Any amendment to change the structure of separation between the state is viewed with suspicion. And with reason: the tripartite structure of functions preserves the rights of citizens in the face of the state. The central thread of his work is the investigation of a possible transformation of the separation of functions after the issue of reform of the judiciary, which established a new competence to the Supreme Court the issue of summary binding to constitutional matters. To some experts the summary character of general stores and abstract, with the same force of law, which set up an invasion of the constitutional powers of the legislature by the Judiciary. The general objective of this analysis is the emergence of the state and the structuring of their duties. The specific objectives shall be composed of the various instruments to analyze the uniformity of law in countries belonging to the common law, in particular, England and the United States, and the civil law, Portugal and Brazil. Of equal importance it is the way in which the three powers Executive, Legislative and Judicial balance is through the system of checks and balances in the design philosophy proposed by Montesquieu. Another specific objective is to analyze the concentrated control of constitutionality, with binding effect and its effect prior to Constitutional Amendment 45/04 and then when the summary itself is the central point. We compared the summary to the formal law with regard to scope and purpose The methodology to be used is composed of methods exegetic-legal, historical and comparative-evolutionary, through which the legal families are studied from the importance offered a case emphasizing its purpose and emphasizing the historical background of the institute's summary of American law. Thus we reach the conclusion about the relationships of dependence or independence of the summary compared to the law and the jurisdiction of the legislative interference of the judiciary is suffering or is only a substitute in the system of checks and balances.