Negócio jurídico processual no processo judicial tributário

• Ano de defesa: 2020
• Autor(a) principal: Viana Filho, José Ivan Ayres
• Orientador(a): Machado, Raquel Cavalcanti Ramos
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Palavras-chave em Português: Processo tributário; Negócio jurídico; Direito tributário
• Link de acesso: http://www.repositorio.ufc.br/handle/riufc/51044

The possibility of using the contract of procedure, in the tax legal procedure, is maximized with the publication of some recent ordinances of the National Treasury Attorney’s Office (PGFN). But that does not mean that its use is a fact shareable by all claimants yet. It is intended, with the study carried out, to bring new alternatives so that the Executive, Legislative and Judiciary branches realize this procedural institute. The aim is, initially, to assert the viability of procedural negotiation with public power. It is considered the contract of procedure as an administrative act, conciliating it with the principles of Administrative Law and Civil Procedural Law. Afterwards, inquire in which way the magistrate could influence the parties for the procedural agreement, to promote the fundamental rights and guarantees; and if that influence would be a faculty or a duty for him. The main problem of violation for procedural equality derives from situations in which Attorney General rejects from agreeing with a party, but accepts with another, under the same factual or legal circumstances. The methodology used was eminently qualitative, through bibliographical research, with a descriptive, explanatory and propositional approach. As a solution for the main problem of procedural equality, it is suggested the use of agreement’s precedent by public power to be formed when benefit in any particular aspect any claimants. The judge would have a duty to stimulate when there is already this agreement’s precedent and faculty when he wishes, for the first time, to propose one. There are repercussions of their facultative action, together with parties, in the Natural Right, in the Human Rights, in the Fundamental Rights, in the Legal Imaginary and the Legal Epistemology. At the same time, it is concluded that, in court, the claimants can drew upon means of contest when there is agreement’s precedent which has similarity factual or legal with their case, with the purpose of deconstructing the administrative decision that does not accept negotiate with him, violating the procedural equality, in addition to declaring the right to its conclusion by the Attorney General. This, however, has only the duty to justify his administrative decisions, respecting, by these means, his discretionary power duty to negotiate procedurally. Are mentioned the ordinances of PGFN about contracts of procedure, concluding that they are not enough, since the procedural negotiation with the National Treasury would also include contract of procedure in laws of special debts, previously or in the course of judicial process; or by facultative influence of the magistrate for new procedural agreements, in which he cannot formally participate, as active subject of business, but only substantially in his cooperative dialogue with the parties. It is approached, in the end, a contract of procedure to be aimed by the judge, in the tax legal procedure, for promoting the principle of prohibition to the seizing effect, in procedural terms, which is the procedural agreement for differs the effects executives of the judicial decisions.