Os fatos como fundamentos da inconstitucionalidade do parágrafo único do artigo 40 da lei 9.279/1996

Abstract

The present research aims to demonstrate that the leading vote delivered by the eminent Minister Dias Toffoli in the judgment of ADI 5.529/DF was primarily grounded in facts. Furthermore, it confirms the overcoming of the then-existing dogma, which, though still somewhat persistent in the minds of many jurists, deemed it impossible to refer to facts in an objective process to verify alleged material unconstitutionality. By correlating said judgment with the legislative proposal found in PL 3.640/2023, the intention is to indicate the validity of this bill in explicitly allowing probative evidence in actions of abstract and concentrated control, thus unequivocally establishing in legislation the possibility of factual analysis in objective proceedings. Pursuing this aim, to reach the outcome proposed in this work, the study begins with an examination of the origin of the dogma that sealed the impossibility of factual analysis in the model of abstract constitutional control. It will also demonstrate that overcoming the dogma of non-referral to facts in abstract control and the consequent evolution of objective proceedings in Brazil resulted from the development of constitutional hermeneutics that materially interprets the Constitution. Considering the philosophical aspect permeating this work, an ontological study of “fact” will primarily be conducted from the perspective of the philosophy of language proposed by John Rogers Searle. Finally, a case study will analyze the qualified grounds set forth in the leading vote delivered by the eminent Minister Dias Toffoli, based exclusively on facts that indisputably demonstrated the unconstitutionality of the sole paragraph of Article 40 of Law 9.279/1996.