PROPERTY RIGHT AND THE APPLICABILITY PROBLEM OF THE NON-CONFISCATION PRINCIPLE: THE CASE OF CONFISCATORY TAX FINES

Abstract

This paper aims to deepen the definitions of confiscation, confiscatory effect, and non-confiscation principle, with special attention to the problem of the applicability of this principle to individual cases, given the lack of definition of its borders. To this end, a historical analysis of the development of the property right is presented, especially regarding to the limits that can be imposed on it, focusing on taxation. A change of perspective from the old limits to the power to tax, currently considered as fundamental rights of taxpayers, is also presented. As an example of important jurisprudential construction, the case of tax fines is introduced, analyzing, in the end, how this example contributes to the solution of the problem of conceptual indeterminacy of the confiscatory effect by Brazilian jurisprudence. The deductive method is used, through research carried out in legislation, doctrine, and jurisprudence of the Brazilian Superior Courts.