Segurança jurídica e proteção da confiança: a justiça prospectiva na estabilização das expectativas no direito tributário brasileiro

Abstract

The problem proposed by the present study, to be solved, is presented through the following question: how can the Brazilian constitutional order of 1988 protect taxpayers against abrupt changes in the given normativity in the three powers of the Republic, providing the safeguard of legitimate expectations of rights in the tax area, based on trust? In order to do so, an analysis of the meanings of "legal security" is initially proposed, by extracting its various meanings, especially as norm-principle, as well as its application to the conflict of laws in time, approaching its objective aspect (vested right) and, especially, its subjective aspect (protection of trust). One also analyzes how those different meanings are understood by the theory of law and applied in Brazilian case law, particularly by the Superior Courts. Then, one passes to the analysis of the concept of expectation of rights, linking it to time and the principle of good faith, in order to reach the definition of prospective justice, able to allow the valuation of the promises of the Public Power, with fulcrum in legitimate trust, making them binding. Finally, one explores the application of transitional principles and rules in tax matters, based on proportionality, as instruments able to reconcile the changes in the Public Power’s understanding of legal security.