Juros reais no direito brasileiro a revogação do parágrafo 3o, artigo 192 da Constituição Federal do Brasil de 1988 e as consequentes altas nas taxas de juros praticadas pelas instituições financeiras

Abstract

The present research has as justification to provoke reflections on the reasons that led to the revocation of paragraph 3, article 192 of the Federal Constitution of Brazil of 1988, especially with regard to the extortionate interests that are practiced by financial institutions. The theme related to the approval of the mentioned constitutional provision and the subsequent revocation by Constitutional Amendment nº 40/2003 is analyzed, as well as the unfavorable effects for the national economy, reflected in the high interest rates practiced by the banks as a result of the loans made available for the consumption and investment. The aim of the paper is to demonstrate that, with the repeal of the third paragraph, banking institutions acquired full freedom to stipulate interest rates, thereby profiting excessively in the consumer market for financial services. We worked on: interest from the perspective: historical, conceptual, usury in Brazilian law, considerations related to bank interest in the light of the Civil Code of 2002 and the question of the self-applicability of paragraph 3, article 192 of CF / 88. Then, it was about the environment in the 1988 National Constituent Assembly, constitutional amendment 1,498 and the controversial EC nº 40 of 2003. Finally, the study brings a more technical reflection inherent to the theme regarding the price of money, the rate market average and the positioning of Jurisprudence in Brazil. The contribution of the study shares with several areas of knowledge: historical, political, economic, legal, among others. Through specific analyzes provided by official entities, it was possible to relate some concepts of the national monetary policy that were used to support the knowledge related to the exponential profits obtained by the banking segment. It was used the methodology with basic-strategic purpose and descriptive objective, the method used hypotheticaldeductive, hermeneutic-argumentative. The qualitative approach and the bibliographic procedure were used. It is concluded that the problem of excessive interest collection persists, is complex and serious. However, a deep evaluation on the conceptual and structural bases in relation to the effective conduct of national monetary policy is necessary.