O pedido de suspensão de decisões proferidas contra o poder público

Abstract

The presented work intended to investigate the institute of the “Action of Suspension” (“Pedido de Suspensão”), by the light of the most important constitutional principles, analyzing its material and formal constitutionality. We point out the cited institute in time and space, through historical analysis and comparison to its similars from other countries. After that, we justified it in the principle of the supremacy of the public above private interest, demonstrating that its creation elapsed from the application of the proportionality principle used by the legislator to solve the apparent conflict between the shock of the supremacy of the public interest and the access to justice. To demonstrate its material constitutionality, we analysed it with the most important procedural principles, and pointed out the formal unconstitutionality of the provisional remedy that regulates it. We demonstrate its legal validity before the procedural infraconstitutional norms. We analyzed its legal nature, in order to better appraise it in the legal system. At last, we spent some time discoursing on its processing, concluding, in specific, that to harmonize itself with the constitutional order, its analysis must be preceded by a minimum judgment of the litigation cause, where the proportionality principle must be used to inquire the probability of future modification of the decision subject-matter of the action of suspension, in face of the gravity of the injury that if presents.