Entre a segurança da permanência e a proteção da modificação: os princípios da segurança jurídica e da proteção à confiança na interpretação e concretização do Direito

• Ano de defesa: 2013
• Autor(a) principal: Santos, Samuel Bertolino dos
• Orientador(a): Pimentel, Silvia Carlos da Silva
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: BR
• Palavras-chave em Português: Interpretação; Modificação; Segurança jurídica; Proteção à confiança
• Palavras-chave em Inglês: Interpretation; Modification; Legal security; Confidence protection
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://tede2.pucsp.br/handle/handle/6318

The work s main objective is to investigate the existent consequences between the alterations that are verified when interpreting normative texts and the legal relations established based on understanding of past legal decision. We start from the assumption that the Law, as cultural object which is a result of human experience, is in constant evolution. Nevertheless, this fact should not be used as a reason to renounce any proposal that preserves that characteristic and aims to find mechanisms to make possible the preservation of legal situations created in the past. Therefore, we tried to keep away from methodological positions that from one side, by believing in interpreter s neutrality during cognitive process, ended up ignoring an essential aspect of legal phenomenon and that, from other side, renounced the existence of any limit to the exegesis and for this reason, resulted in inconsequent decisions. We have adopted conceptions that consider impossible to eliminate the contribution of interpreters to the structure of Law, and also care about the existence of some objective limits of exegesis whether to normative texts or jurisprudence and doctrine practice. For this reason, we understand that it is essential to investigate instruments that are capable to protect citizens, considering this characteristic of the Law. The theme of this work points to the principle of legal security, however, due to its various faces and multiple purposes can fundament not only a wish to the stability of the Law, but also justify modifications that show to be necessary. In fact, a Law that does not adapt to new social realities takes the risk of not become very effective and thus not secure. It is between these two directions to where the legal security principle points that appears the principle of confidence protection, with recent doctrine formulation, but already very well received by Brazilian law courts. This principle is destined to house legitimate expectations of citizens generated by State bodies manifestations which induce behaviours.Taking into account the uncertainties still caused by the theme, it was analysed doctrinal elaborations related to the referred principles that analyse its various manifestations, what allowed to indicate criteria for the application of the principle of confidence protection, mainly by the necessity to demonstrate that the State body manifestation for past decision was decisive of citizens behaviour that, afterwards got frustrated in the face of the new orientation. Thus, we also tried to avoid doctrinal conceptions that facing the undeniable innovative character of interpretative activity, seek justify that new orientations coming from bodies of Judicial Power and Public Administration have merely prospective effects