The constitutional complaint and the overruling of Declaratory Judgment of Constitutionality

Abstract

This article investigates the following problem: can the Supreme Court, at the trial of constitutional complaint, overrule the declaratory judgment of constitutionality handed down in concentrated control of constitutionality? The article is divided into three parts. First, we analyzed the main aspects of the declaratory judgment of constitutionality in the concentrated control and the res judicata that falls on her. The second part dealt with the Complaint based on the code of Civil Procedure of 2015 and in the Constitution, especially to delimit your object. Finally, from the analysis of the trial of Complaint nº 4374, was shown specifically that the Supreme Court has proposed the overruling of declaratory judgment of constitutionality through the trial of Complaint constitutional. It was realized that the declaration of unconstitutionality on the belly of a Complaint will continue having effects inter parties, even in the case of overruling a declaratory decision of constitutionality handed down in objective action. Changing this setting for the diffuse control of constitutionality by the Supreme Court would depend on a constitutional amendment to give effectiveness erga omnes to the decision in the diffuse control of constitutionality.