Limite do poder normativo do Conselho Nacional de Justiça em matéria de substituição de delegatários dos serviços extrajudiciais

Abstract

The relevance of notarial and registry services is of paramount significance to civil life. Given its juridical nature, notarial and registry services could not have been excluded from the reform carried out by Constitutional Amendment No. 45/2004 in the Judiciary, nor from the scope of control of one of its main characters: the National Council of Justice. However, due to the manner in which the constituent derived established the competencies of this Council, the modulation of this power is a contemporary impasse, especially regarding notary and registry delegates. In this context, based on a bibliographic review of studies and the jurisprudential analysis of the Federal Supreme Court regarding the exercise of the Normative Power of the National Council of Justice in relation to notary and registry delegates, the present study aimed to answer the following problem: Can the National Council of Justice issue a normative act imposing on the holders of extrajudicial offices the duty to appoint a substitute who does not fall within the nepotism hypotheses? It was also found that the aforementioned Council is competent to issue administrative acts of primary and secondary normative character, with notarial and registry services being subordinate to these acts because said services are owned by the State, despite the obligation to provide them on a private basis. Armed with this knowledge, it was found that the National Council of Justice, in order to confer legal effectiveness to the constitutional principles of administrative morality and impersonality, has already issued administrative acts that mitigate the broad legal freedom of holders of extrajudicial offices to hire their proxies. Thus, analyzing the problem proposed in this study under the normative and jurisprudential panorama listed, it can be affirmed that there is no obstacle to the issuance of a normative act by the aforementioned Council imposing on the holders of extrajudicial offices the duty to appoint a substitute who does not fall within the nepotism hypotheses, considering that said norm would have as its validity basis the constitution itself, not constituting an affront to Law 8.935/94.