A PEC n° 80/2019 e a instituição da propriedade agrarária contraditória : análise da proposição à luz da Constituição de 1988.

Abstract

This master's thesis sought to analyze the constitutional legal viability of the claim to structure the social function of rural property (or land) in light of the Proposed Amendment to the Constitution no. 80/2019 (PEC nº. 80/2019), which seeks to change its constituent/defining requirements. In this context, the legal viability of the proposal was questioned given the limits imposed by the Original Constituent Power; whether the changes proposed by the PEC would violate the constitutional core, characterizing a proposal tending to abolish a fundamental right; what implications the promulgation of PEC no. 80/2019 would generate for the Brazilian legal system and whether the approval of PEC no. 80/2019 would constitute a social setback, violating legal security and establishing the figure of “contradictory constitutional agrarian property”. To answer the proposed questions, the research presented an outline of the historical and legal configurations of the social function of land ownership in national law, seeking to understand the structuring of socio-functionalized constitutional property made after the promulgation of the 1988 Constitution, discussing the legal implications of alleged conceptual change in the social function of rural property. The general objective of the research was to promote an analysis of PEC No. 80/2019 specifically the intention to amend article 186 of the Federal Constitution, under the bias of its constitutionality/unconstitutionality. As specific objectives, the legal structuring of the social function of property in Brazilian law was presented; the social function of property was discussed from the perspective of a fundamental right, analyzing its possible inclusion as a constitutional constitutional clause; the legal implications arising from the change in the requirements of the social function of rural property were verified following the promulgation of constitutional amendment proposal no. 80/2019. The hypothesis of the work is outlined in the affirmation that the social function of property is considered a constitutional constitutional clause before its inclusion in the list of fundamental rights and duties, and the proposed amendment tending to abolish it cannot be subject to deliberation ( reduce or suppress) from the Constitution. Thus, changing the requirement (from cumulative to alternative) of the presence of requirements evidencing compliance with the social function of rural property, set out in article 186 of the Constitution, would be unconstitutional, as it goes against the intangible core, implying violations of other fundamental constitutional rights . Regarding methodology, the historical technique of theoretical investigation structured based on consultations of primary research sources (original documents) was used; the conceptual technique, working on the phenomenon focused on from theoretical references and systems of ideas that allowed the construction of the internal logicality of the research, with conceptual development aimed at treating the problem, a technique that required bibliographical research work, also having been used the normative technique, by employing a normative-legal study of the phenomenon researched through a dogmatic line. The stages of the investigation focused on the observation of the phenomenon (collection of qualitative information), the promotion of questions (construction of questions to explain the phenomenon researched), the formulation of hypotheses (to resolve the questions), study phase, analysis of hypotheses and conclusion. As a conclusion, the research pointed to the legal unfeasibility of the proposal given the limits imposed by the Original Constituent Power, with PEC No. 80/2019 intending to violate the constitutional core by characterizing a proposed amendment to the Constitution tending to abolish fundamental rights, generating serious attacks to other rights, constituting a social setback that violates legal security by establishing the figure of contradictory constitutional agrarian property, moving towards the opening of deficient state protection in the area of fundamental rights.