Serviço registral de imóveis, formas de extinção da delegação: uma nova hipótese

Abstract

The decision of the S.T.F. that excluded from the obligatory retirement the recorders and notaries, stablished a regulatory gap in terms of temporality of the delegation present in art. 236 of the C.F., which allows, acording to the words of Engisch, removal through legal-integrative decision, originally from the systematic interpretation of the constitucional principles of efficiency, impartiality and the Republican principle, in order to, in this case, declare the end of the delegation by the implement of the age of seventy years, or by the lapse of 35 years of delegation, in analogy to the provisions of art. 1.º; 37 and 40, II, of the C.F.; art. 2.º, II; I; 18, I and 23, I, of the Law n. 8.987/95; art. 5.º, I, of the Law n. 11.079/2004 and art. 4.º of the L.I.C.C., in which case the decision would operate inter parts effects. The erga omnes solution, however, depends on the performance of the ordinary legislator, because observing the delegation present in Art. 236 of the Constitution, which deals with transfer of portion of State-power, the end of the delegation can not depend on circumstances that may never take place, or on the death end, which is an undated event, characterized by perpetual delegation, as ocurred during the monarchical regimes. In case of delegation to an individual, the proposotions contained in Art.39 of Law n. 8.935/94, as inferred in the republican principle, do not satisfy the requirement of temporality, for which we propose adding a new hypothesis, as item VII, fixing a right term, an age limit, in the case, seventy years, or similar to what occurs in the delegation of legal services to a legal entity, the maximum stated period of 35 years of validity of the delegation; however, this latter case is also subject to the age limit of 70. For the same reasons, should the grantor State administration, in face of the supremacy of public interest that it holds, and observing the convenience and opportunity, establish in the announcement of the tender, the stated period of the delegation; otherwise, the contest would be invalidate. At the end of any of the established time limits, it will occur the TERMINATION OF THE DELEGATION and the consequent vacancy of registral service of properties, so that the mandatory retirement will not take place. More efficient, however, in face of its national scope, it will be an action in this direction coming from the National Council of Justice, which is competent by force of the Art.303-B, § 4°, III, of the C.F./88