Impossibilidade de afastamento da incidência de normas infraconstitucionais nos tribunais sem declaração de inconstitucionalidade

Abstract

The guarantee of constitucional supremacy presupposes means of protection to the superior normatization, notably the judicial review of laws and normative acts of Public Power. Knowing the existence of diffuse and concentrated controls in the brazilian legal system, will be concentrated the study of the diffuse model in the scope of the courts. In these, there is a specific rule for unconstitutionality declaration, from United States jurisprudence, the full bench rule or reserve clause, wich must be applied, even when there is a partial removal from the incidence of infraconstitutional norms. The theoretical and practical impairments of noncompliance with the mandatory incident will be demonstrated through the analysis of modern constitutionalist doctrine as well as the jurisprudence of the country courts, specifically in the case of compulsory university transfers.