Jurisprudential debate: constitutionality of banking confidentiality breach by the fisco

Publicado em 28 Apr. 2016. Última atualização em 28 Apr. 2016
ACTIVITY DESCRIPTION

Summary: 

It is an activity that focuses on the breach of banking confidentiality as a tool to assess the contributive capacity of the taxpayer. It is pretended that students are able to analyze judged taxpayers critically. So, they examine votes from the Plenum of the Federal Supreme Court judgment on the AC 33 and the RE 389 808. The class is divided according to the polarity of the votes and realized two debates: the first focusing on the votes’ arguments, and the second comparing the votes’ arguments with other related cases. It is stablished an evolution relation and a change of positions, and it is concluded with a critical reflection about the subject.

Objective: 

- GENERAL GOAL: It is to learn how to treat the principle of ability to pay, a fundamental and basic principle in tax law, it is inserted in class into the dynamics of Tax Dynamics course.


- SPECIFIC GOALS: using a case study, this goal is related to the addressing of the breakdown of bank confidentiality as a tool to measure better the ability of the taxpayer. The theme is controversial because they have already been judged several cases in opposite directions or split votes with multiple arguments. The class looks to make a critique of jurisprudence through the collective construction of the argumentation, with notes on strengths and weaknesses of the judgement decision on each topic and relevance of the central theme of the lesson.

- It is expected that the student has contact with the jurisprudence and develop the expertise to analyze it critically. 

Dynamics: 

-

- METHOD: case method


- REQUIREMENTS: for students, there was an obligatory previous reading (see attachments). For the professor, the preparation consisted in the reading and selection of the readings votes, generally in accordance with the relevance and extent.


INTRODUCTION: During the first 30 minutes of class, the professor began presenting the theme of banking confidentiality and the history of the subject in Brazil, as well as an exhibition about banking confidentiality within the principle of ability to pay.


DEVELOPMENT OF THE DYNAMICS: the dynamics was developed in two stages.

Step 1 - split the class into two big groups, one for reading and analysis of votes in favor of the bank confidentiality, and the other for reading and analysis of votes against the bank confidentiality. Students have 15 minutes to read. According to the number of students in class, they formed subgroups of four components among those who analyzed the same votes. The professor asked the students read the favorable and unfavorable votes, noting on the blackboard the most important points. Using the listed arguments, the professor held a discussion with the whole class, reconstructing the jurisprudence evolution. She analyzed each vote (30min), systematized positions and stimulated debates.

Step 2 - for 40 minutes, the professor questioned and discussed in class the votes’ grounds and argumentations, comparing them with other related judged. Also, she encouraged the discussion on a critical analysis of the arguments used, the evolution of the jurisprudence about the banking confidentiality and adequacy or not of the decision.


END OF THE DYNAMICS: During the last 15 minutes, the professor made a critical closure of the class, discussing the congruence and contradiction of the decisions and votes of the ministers themselves in various judgments, as well as the important role of constitutional provisions, and the relationship of this with jurisprudential overviews, among other aspects.


ATTENTION IN THE CLASSROOM: it is recommended that the professor has an extensive knowledge about the jurisprudential debates.

Evaluation: 

The evaluation was made through participation grade in the collective debate.

Observation: 

The same dynamics can be used for other controversial themes that count on jurisprudence or relevant judged.

 

Activity Details

Name: 

Jurisprudential Debate: Constitutionality of Banking Confidentiality by the Fisco

Institution: 

FGV DIREITO SP

Concentration area: 

  • Tax Constitutional Law
  • Tax Law

Discipline : 

Taxation Dynamic – Professional Masters’ Degree

Course: 

  • Graduate Course stricto sensu level

Key words: 

  • Concrete case
  • debate
  • Case study
  • Banking confidentiality

Number of students: 

Less than 20

Time of application: 

From 2 to 4 hours

Edition: 

Diogo Rais Moreira
Fernanda Tie Yamamoto
Guilherme Forma Klafke

Copyright

Licença Creative Commons
This work is licensed under a Creative Commons Atribuição-NãoComercial-CompartilhaIgual 4.0 Internacional

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