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Summary: Tips & Tricks Constitutional Law - by Unknown
Summary of Constitutional Law
Subject:
Tips & Tricks of Constitutional Law
Content:
Tips and Tricks matter Constitutional Law
Purpose:
Show Concurseiros to the "gotchas" that appear in the Public Tender Several test
s.
Author:
Unknown
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Summary: Tips & Tricks Constitutional Law - by Unknown
CONSTITUTIONAL LAW
("Pranks") Constitution: no hierarchy among different devices in CF. Immutable c
lauses of the Constitution can not be used as standards in higher ADIN (direct a
ction of unconstitutionality).
STF:
do not enjoy constitutional standards on originating (constitutional or Constitu
ent Power originates). Material in the Constitution, include only issues that mu
st be addressed in a constitution. What counts in the material sense of the Cons
titution is the content of standards, which focus on issues important to the sta
te, as the Organization, duties, power, etc..
Material constitution:
Formal constitution, certain provisions of the Constitution deal with matters at
ypical, which should not appear in the Constitution. What is worth saying that t
he standards were produced in the formal process and are included in CF exclusiv
ely so, and not the content of standards, rigid constitution: not easily changea
ble, requires special process (usually written)
Constitution flexible: easy to change, by ordinary law. Constitution promulgated
: deconstitutionalization: revolution, overthrow of power by force. norms of the
Constitution as ordinary law repealed worth - not worth in Brazil, unless expre
ssly provide a new CF.
Originating Branch:
unlimited extra-legal. Reformer (CF), subordinate conditioning. Power derived re
sult. unconstitutional by the CF. Can be
Power derived (made): Constitutions of the States:
Power derived from the limitations:
(Can not modify FC) time (after a certain period), circumstantial (site, federal
intervention, defense), materials (stony clauses - to abolish voting federative
form, distribution of powers and rights / individual rights) and procedural (3
/ 5 each Home for rejection)
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Summary: Tips & Tricks Constitutional Law - by Unknown
Amendment to change the quorum for amendment: Limiting material:
material limitation implied - prohibited.
to abolish, extinguish, but it can restructure the stony clause without abolishi
ng or extinguish. does not require law or regulation, shall take effect immediat
ely - hence it is valid.
Standards (CF) is fully effective:
Contained Effectiveness: Effectiveness limited to:
needs of law or regulation, but it can take effect. no effect, only with standar
d infra ability to produce effects.
Constitutional validity:
Interpretation of the Constitution: to use various elements (political, economic
, sociological, etc.), not only the rules of law. Supervening unconstitutional:
there is in Brazil, only implied repeal.
Interpretation of the Constitution: it can not contradict itself CF. Receipt of
law by CF: Amendment: formal and material
same hierarchical level of total CF
Unconstitutionality as to form:
Judicial Review: Judge or Court in the country Complementary Law / common / dele
gate: International treaties: no hierarchy
ordinary level of federal law. There may have on matters of law are complementar
y. Can be repealed by ordinary law.
Autonomous decrees:
not exist, are unconstitutional provision required by law.
Statutory law:
may revoke a complementary law (if this legislation on the subject of statutory
law) is not subordinate to the laws, jurisdiction diverse.
Legislative Decrees and Resolutions:
Federative Republic of Brazil:
not secession, separatism. 3
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Summary: Tips & Tricks Constitutional Law - by Unknown
Indissoluble union: Form of State:
States, Federal District and Municipalities. Federation (Federal, State and Fede
ral) verbs (CONGAPROERR)
Fundamental objectives: Background:
SOCIDIVAPLU (INPREAUTONÃ OIGUALREDECONSOCO) Latin America
International principles: integration between peoples: Extradition:
non-native Brazilian or foreigner for a political crime (not in international pr
inciples). Depends on an extradition treaty. are not unlimited. Are limits on th
e CF itself. Must be interpreted in harmony with the other rights guaranteed. No
t exhausted in the art. 5, are all over the CF.
Individual rights and fundamental
CF - material limitations expressed the Temporary Measure (MP) Prohibition state
to regulate exploitation of the local services of piped gas, seal article of th
e Constitution to regulate with wording amended by Amendment from 1995.€MP expr
essly rejected by the CN is not allowed its reissue by the RP.
MP published - can no longer be withdrawn from the CN, but may be revoked or rei
ssued within 30 days. Repealed HB (abrogated) by another MP - is suspended until
the NC rule on the MP revoker (ab-rogante). If approved revoker MP, former MP i
s repealed. If not approved revoker MP, again the effects of MP revoked for the
remainder of its term. Law converted from MP - overcomes all the defects in the
urgency and relevance of MP. The resulting law is not contaminated, and therefor
e can not be considered unconstitutional.
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Summary: Tips & Tricks Constitutional Law - by Unknown
Assumptions of relevance and urgency on the issue of MP - admit the judicial rev
iew only if there is excess power to legislate. There discretion of PR, or PR ca
n claim to be relevant and urgent for the country based on their motives. When y
ou exceed these reasons (if they exist, for example), there may be constitutiona
l control. MP - taxes and contributions, may set and modify taxes and social con
tributions (STF) MP - crime and punishment can not impose criminal penalties or
fix (STF).
MP and LC - can not afford on a matter of supplementary law, even if an absolute
majority in the adoption of MP. MP and social security contributions within 90
days for recovery - account for the publication of the MP. If substantially chan
ged by the NC MP, the period begins after the law of conversion.
Partial conversion of MP into law - not mischaracterize the emergency situation,
when there are no changes to the CN substantially changed the text. Even though
the NC glose certain articles, the fact does not affect the MP in its temporal
validity. MP not signed into law in 30 days - loses its effectiveness since the
edition (retroactive extunc). Legal relations arising from the validity of the M
P must be disciplined by the NC. Reprint of MP and MP contesting ADIN - need the
addition of ADIN.
Reprint separate MP and ADIN - the necessity of bringing of new ADIN. MP - uncon
stitutional - MP can not declare the unconstitutionality of another MP, but MP c
an repeal another, within 30 days. Prohibited by law delegated matters - can be
regulated by the PR for MP.
Member States - can impose a provisional measure (HB).
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Summary: Tips & Tricks Constitutional Law - by Unknown
Legal reserve simple -
when the CF states in its articles that a matter is the subject of an ordinary l
aw (eg as provided by law, under the law). The legislature can not limit either
the right or to abolish it by law, ie there are implicit limits on its legislati
ve action.
Qualified legal reserve - and establish what will be the subject matter of law,
establish conditions or purposes that should be the object of the standard (eg f
or purposes of). Any other restrictions in the law which does not meet these pur
poses, it may be argued as unconstitutional. Principle of reservation of the IPC
's jurisdiction does not have all the powers of the judiciary, ie, there are cer
tain matters of exclusive competence of the members of the CF PJ. CPI can invest
igate other facts that connect with the main fact.
CPI and finding of fact determined -
CPI and calculating for a limited period - the maximum period prescribed by law
is the end of the current legislature. The CPI can be brought on until the end o
f the legislature. CPI and secrecy of the lawyer - the lawyer is obliged to appe
ar before the CPI, but may be excused from testifying about facts, it is claimed
secrecy. Legitimacy to remain silent before the CPI - the Supreme Court conside
rs as legitimate the decision of the investigation to remain silent before the C
PI. Breach of secrecy, taxation, banking and telephone - the CPI's can break the
confidentiality of persons investigated. CPI telephone interception and the CP'
Is are prevented from authorizing the wiretaps, but can do the lifting of connec
tions already made (telephone bill, numbers, duration, etc.)
CPI - other impediments make search and seizure of documents in residence; decla
re unavailability of goods; Hold any person, unless flagrant; prevent lawyers in
vestigated the sessions. 6
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Summary: Tips & Tricks Constitutional Law - by Unknown
Procedural immunity -
The PR can not be prosecuted for common criminal offenses committed before takin
g office, even for acts outside his office. This immunity does not extend to pro
cedural Governors of State. The PR can be processed only for common crimes and c
rimes of responsibility during his tenure. Governors may be subjected to trial b
y the Legislative Assembly (LA)€under the same conditions PR (trial 2 / 3, cons
ent, criminal liability, common, etc.).
Proceedings against State Governor -
Creation of Municipal Audit Courts - only the municipalities are prohibited from
creating, states can. Submission of agreements signed by the Governor for appro
val to the AL -
by unconstitutional affront to the principle of separation of powers.
Fixation by the Legislative deadline for the Executive to start law (Private law
initiative by PR) -
unconstitutional invasion of the principle of separation of powers.
Principles of reasonableness and proportionality - are applicable in our law, in
sofar as laws are considered wrong or inappropriate. The judiciary can challenge
laws based on this principle, which are unnecessary or disproportionate. Public
civil action - can be used for the purpose of judicial review, only incidental
or diffuse in control, never as a substitute for ADIN the concentrated control o
f constitutionality by the Supreme Court. Judicial review in Brazil - is the jur
isdictional control (legal) as well as political control by the Executive (previ
ous control by PR) and Legislative (prior control by the Standing Committees). A
cts of Congress restraining the acts of the executive branch - are also subject
constitutionality. 7
to
control
of
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Summary: Tips & Tricks Constitutional Law - by Unknown
Law enforcement viewed as unconstitutional - the Chief Executive can only apply
the law to understand that it is unconstitutional. Senate, is not required to su
spend a law declared unconstitutional by the Supreme Court, in control incidenta
l, nor is forecast for this period. The Senate can not extend or restrict the tr
ial of the STF, or revoke the suspension if his act has already suspended the no
rm. If partially suspend the law, it is because the Supreme Court so ruled and j
udged. In concentrated control, the law is declared unconstitutional by the Supr
eme Court and do not need the Senate to suspend the execution.
Injunction in ADIN and ADC - may be granted in periculum in arrears, ie, if the
unconstitutionality represent an immediate threat to the right. The injunction i
s also reinstating the rule and the previous law, if any, that would have been r
evoked by standard argued from unconstitutionality. Meanwhile, nothing prevents
the emergence of new law met constitutional principles of all creation. Governor
and Bureau of State Assembly, DF, confederations and national professional asso
ciations - rules on challenges to ADIN - The Supreme Court requires for relevanc
e, ie, that matter is related to its Federated Unit or to the cause and interest
of plaintiffs. STF: You can limit the effects of the declaration of unconstitut
ionality because of legal certainty and could not make it totally retroaja ex tu
nc, or retroaja only a certain date, or even that it will be effective from the
transit in trial or other time period.
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