Uma análise do julgamento do recurso especial n 1.418.593 MS: para uma interpretação juridicamente correta, constitucionalmente orientada e discursivamente legítima

Abstract

This work intends to analyze the decision of Recurso Especial n. 1.418.593 MS in order to propose a new interpretation for the problem of the judgment, which was based on fragile assumptions, from the argumentative point of view, to stipulate a specific reading for the legal expression "completeness of the outstanding debt" and ultimately ignored a constitutional discussion on due process of law that was fundamental to the cause (since the appeal also involved the debate on the possibility of disposing of the asset given as security before it was rendered final decision in the processing instance). After presenting, in greater detail, the law of regency of matter and the resource that judged the controversy, the theoretical research of the dissertation shows the philosophical genesis of Fundamental Rights from the thought of Immanuel Kant, pursues the construction of this concept in the european historical evolution, emphasizing the importance of this journey to the very identity of the Modern West, and recovers how the concept was incorporated into legal ideals, making the subject emancipated and the subject of law enjoy a dual autonomy - public and private, that is, that of citizen and that of individual. In the end, the criticism is made of the decision taken by the superior collegiate both from the habermasian perspective, regarding the legitimacy of the decision, which did not attempt to form a minimum consensus on the matter based on communicative action, and the perspective of positive law in the country, more specifically with regard to the technical correction of the judgment, especially in view of the constitutional treatment that should have been dispensed to it.