USUCAPIÃO EXTRAJUDICIAL E A EXIGÊNCIA DE ANUÊNCIA EXPRESSA DO PROPRIETÁRIO TABULAR.

The purpose of this paper is to evaluate the possibility of recognizing the formal unconstitutionality of section II and paragraph 2 of Article 216-A of Law 6.015 / 73 (Public Registers Law), for violation of the provisions of Article 65, sole paragraph of the Constitution Federal, by the Judge Corregidor of the Serve of the property usucapiendo. This expectation finds support in the diffuse control of constitutionality, adopted in the Brazilian legal system, in Article 5, paragraph XXXV, of the Federal Constitution, which enshrines the so-called 'principle of inafasability of judicial decisions' and Article 97 of the same law, which Requires the observance by the courts, for diffuse control, of the "constitutional clause of reservation of plenary", corroborated with Article 948 of the Civil Procedure Code (Law 13.105 / 2015), which governs the procedure. The diffuse control of constitutionality allows any and all judges or courts, from any instance, to exercise the power-duty to supervise the strict compatibility between the legislation and the Federal Constitution. Such a mechanism would allow the Corregidor Judge, in the exercise of his discretionary power, to elect the partial inapplicability of the provision, in the specific case, rendering a decision limited in scope to the parties and with ex tunc effects, in the interest of doubt, As permitted in Paragraph 7 of Article 216-A of the Public Registers Law. On a continuous basis, it would determine the registration of the property, regardless of the express agreement of the owner, as long as convinced of the Author's right and characteristics of the property and meeting the other requirements listed in the legal text. The result sought in this study, based on the methodological research carried out, is to emphasize that the aforementioned device, as presented, probaly not will have the intended practical application, but it is apt to become an insurmountable obstacle to the detrimentalization of the adverse possession (Usucapio) process. However, if the issue of formal unconstitutionality is met by the Judiciary, It may be possible a more optimistic view of the country's legislative disparities. Ultimately, invoke the reflection of the legal operators regarding the total discrepancy between the predicted device Legal and current trends in the laws of most contemporary societies, which, adapting to the new needs, are promoting the extrajudicialization of the processes, referring them to the analysis of tabelionates, registries and other auxiliaries of the Justice, leaving to the charge of the magistrates, only the most relevant and contradictory issues, in order to better solve the problems of the legal world. [ABSTRACT FROM AUTHOR]