O controle difuso de constitucionalidade em sede de ação civil pública.

Abstract

With appearance of a mass society, due to the partner-political-cultural transformations of the Century XIX and well like this the individualistic conception of the invigorating rights in the Liberal State, they lose space with the appearance of new species of conflicts and rights of nature transindividual, whose titular they are countless or a lot of times uncertain. The diffuse control of constitutionality can be executed through the Public Civil Action when the request of unconstitutionality declaration happens incident, that because in the diffuse control all and any judge or tribunal can execute the analysis of the constitutionality of the laws or normative actions. The noise put around the diffuse control of constitutionality in the extent of the Public Civil Action meets sheltered in the article 16 of the Law no. 7.347/85, which foresees effects raises omnes of the thing judged to happen in the sentence engraved in those type of actions. He/she happens, however, that the request of unconstitutionality of a law or normative action if it completes as cause of asking reason for the which is not reached by the judged thing. Besides, the inexistence is had, in the effective legal order, of limitations concerning the actions through which the constitutionality control can be executed, evidencing that she cannot restrict the constitutionality control in the Public Civil Action for procedural subjects. In spite of the decision uttered in headquarters of the Public Civil Action to transcend the subjective limits of the it works, obstacle inexists for the unconstitutionality recognition in the concrete case (for the fact of not being reached by the judged thing) once it is an incidental subject and I don't object main of the cause, reason for the which one cannot speak in usurpation of competence of Federal Supreme court, only organ legitimated for the abstract control of constitutionality. Like this, to prohibit the analysis of the constitutionality as harmful subject in the extent of the Public Civil Action, is equal to minimize the effectiveness of that mechanism of constitutional nature of protection of rights diffuse, collective and individual homogeneous. High court silted up understanding concerning the possibility of diffuse control in the salience of the Public Civil Action when the request of declaration of law unconstitutionality or normative action to constitute a harmful subject, and actually the one that she ban is the use of the Public Civil Action as substitute of the abstract control of constitutionality, not having, therefore, legal proscription as for the declaration of unconstitutionality uttered incident forjudge or tribunal when urged the if he/she pronounces on such subject.