Análise da extinção, sem resolução de mérito, das execuções fiscais de pequeno valor, à luz do interesse público e do princípio da separação dos poderes

Abstract

The high cost of processing tax executions in Brazil, besides being a problem of public management, is the subject of judicial controversy. The proven state losses with processes whose expenses exceed the collected amounts open space for the discussion about the interest of action of the exequent organs in this type of action. The present work aims, at first, to examine the arguments raised by the divergent understandings expressed in the jurisprudence on the subject. From the study, it will be possible to verify the inexistence of utility in the requested judicial protection, reason for which is left authorized, to the Judiciary, the extinction of the action without resolution of merit. It will also be noted that this judicial activism does not matter in violation of the guarantee of the inafasability of the jurisdiction, since it was effectively exercised the right of action in the act of proposing the action. Also, it does not violate the principle of separation of powers, due to the atypical function of the Judiciary to control administrative acts. The need to have such control, as will be demonstrated, happens from the fact that, in some cases, the "public secondary interest" of the exequent organs prevails in relation to the "primary public interest" regarding the rationalization of the public budget.