ESTUDO DE CASO ACERCA DA POSSIBILIDADE DE SUPERAÇÃO LEGISLATIVA DE PRECEDENTES E PADRÕES DECISÓRIOS:

ADI 3.772 E AS ATIVIDADES DE MAGISTÉRIO PARA FINS DE APOSENTADORIA ANTECIPADA DE PROFESSOR

Abstract

This research, which is situated in the field of Jurisprudence, aims to understand the legislative overruling of a precedent or standard decisions of the Federal Supreme Court (FSC). It studies Direct Action of Unconstitutionality No. 3.772, which examined Statute No. 11.301/2006, which defined what teaching duties would be, in an expanded way, for the purposes of granting early retirement to teachers. This law overruled a precedent and standard decision by the Supreme Court. What’s the problem: is a constitutional amendment necessary to overrule a precedent or standard decision by the Supreme Court, which interprets a rule of Constitution, as is the case with § 5 of article 40 and § 8 of article 201, both Federal Constitution of 1988? This is a theoretical proposal and case study, based on monographic research and Ronald Dworkin's Law as Integrity. It was concluded that the FSC's precedents and standard decisions, based on a constitutional rule, can be overruled, even by ordinary laws, when they reflect a superior principled reading of the law, in comparison with the answers offered by the Court.