A inconstitucionalidade do reexame necessário em razão da ofensa ao princípio da igualdade

Abstract

Acoording to the normative power conferred to the Constitution and to the principles enshrined in it, from the viewpoint neoconstitucionalista, all infra norms must promote the implementation of fundamental rights and guarantees. Especially, concerning the procedural rules, given its imminent instrumental aspect, the creation legislative and the legal interpretation should not lead to behaviors that deviate from the axiological-normative content expressed in constitutional principles. Thereby, the work to be done aims to analyze the institution of review required, article 475 of the Code of Civil Procedure, to appreciate its constitutionality in light of the principle of equality, positivado in the Federal Constitution of 1988 in the caput of article 5 . Thus, the pragmatic and theoretical foundations that underlie this prediction, respectively, the presumed hipossuficiência of the State in the Court and the protection of the public interest, shall be investigated according to the proposed guideposts by Celso Antonio Bandeira de Mello in his works Legal Content of the Principle of Equality (2003 ) and Course of Administrative Law (2009). Once the scope of the principles of equality and the supremacy of the public interest delimited, will conclude, in the end, that the shipment ex officio does not lend itself to safeguard the procedural equality, neither the primary public interest and takes the form, so, real offense to constitutional order.