Reflexões acerca da natureza dúplice da Ação Direta de Inconstitucionalidade e da Ação Declaratória de Constitucionalidade

Abstract

This paperwork’s intent is to analyze the double nature of the direct action of unconstitutionality and the declaratory action of constitutionality, as this thesis is being spread and defended by most auctors and jurisprudency. This theory emerged with the 3th Constitutional Amendment of the Brazilian Federal Constitution, in 1993, and it was intensified with the arise of the Law n. 9.868/99. It is sustained by the equivalency of the actions, as they are both judged by the same court (the Federal Supreme Court) and face the same question, the compatibility of laws or normative acts with the Federal Constitution. However, observation shows that, in despite of what the most doctrines and jurisprudency defend, it is not possible to recognize the absolut character of ambivalency of the actions. Therefore, it becomes necessary to study the differences between the direct action of unconstitutionality and the declaratory action of constitutionality, so that, afterwards, will be possible to identify in which measure they have a double nature and interchangeable effects. A comparative study of the intrinsic characteristics of the mentioned actions was developed, thereunto several cientific materials were used, such as doctrinary books, juridic magazines and jurisprudential productions. The thesis presented is that these actions do not have a double nature always, but only in some specific situations, so it is imprecise to treat them as ambivalent actions.