A arguição de descumprimento de preceito fundamental no Brasil: uma análise dos seus efeitos em casos práticos.

Abstract

The present paper will analyze the argumentation of allegation of disobedience of fundamental precept (ADFP) so that there is a demonstration of the appropriateness of this action as an effective instrument to ensure and fulfill the rights and fundamental guarantees. The complaint of action, when inaugurated, greatly broadened the national power in the Brazilian legal system and is provided for in art. 102, § 1º of CF/88, and also in Law nº 9.882/99. That shows the rules of processing and judgment of ADPF. There are several complications, gaps and losses in Brazilian history complaint action, such as the delay in the regulations, the possible declaration of unconstitutionality of incidental mode, etc. but none of them harmed the performance of the ADPF that finds a great strength in its use by the judiciary. Indeed, it seeks to demonstrate the implementation of the action so that it is highlighted that it may already achieve the objectives for which it was created. This delineation was made based on the deductive method, starting from the study of the principles, concepts and fundamentals of judicial review, even to highlight the features of the recently inaugurated ADPF. Therefore, we will use the method of historical and evolutionary procedure for demonstrating the dynamics of argumentation action that adapts to social needs, and the exegetical and legal method presenting the jurisprudence built on the ADPF. Also will be used the bibliographical research technique with theoretical references to support the construction of the central idea. In order to monitor the achievement of such action, analyzed some judged handed down by the Supreme Court, which are sources of aggrandizement and expansion of new and old rights. Thus, it appears that the ADPF is becoming a real instrument of creation and renewal rights, supplying certain shortcomings in the concentrated control of constitutionality.