Controle de recepcionalidade: análise da compatibilidade das normas infraconstitucionais anteriores com a nova Constituição

Abstract

The present study aims at retaking the study of the phenomenon of reception of ordinary laws earlier to the entrance in force of a new Constitution. In that thematic context, the starting presupposition, widely accepted, is that the use of a previous legislation is inevitable, a necessity by the own juridical system that begins to be formed and, also, the social system itself. Bering this aspect in mind, and considering that not all previous ordinary laws are allowed to ingress the new system, it would be necessary to search the required conditions for the admission of the mentioned ingress and the consequences of the non-reception, whenever the ordinary law is materially incompatible towards the new Constitution. It is investigated the possibility of existence of reception rules in the context of the Federal Constitution of the Brazilian Republic 1988, in relation to the Transitory Constitutional Provisions Act. The research encompasses the admitted ways of reception control diffuse or concentrated, analyzing the possibility of modulation of such effects, "full bench" reserve (i.e., the need of an absolute majority of the members of the Court for trial), plus the performance of the Brazilian Supreme Federal Court ( STF ) in the analysis of ordinary laws prior to the Constitution