As ações de improbidade administrativa, o foro por prerrogativa de função e o alcance ao agente político
Carregando...
Data
2014-11
Autores
Orientador(res)
Góes, Silvana Batini Cesar
Métricas
Título da Revista
ISSN da Revista
Título de Volume
Resumo
The administrative misconduct is an old phenomenon in Brazilian history, having its roots in the country’s own colonization. In this sense, it has become essential to implement measures in order to deter corruption in a broad sense, mobilizing various law areas for this purpose. The Constitution of the Federal Republic of 1988 (CRFB/1988) promulgation conferred constitutional igidity to the means of restraint of improper conduct, peremptorily establishing principles and standards to the theme, highlighting the importance of controlling the acts of public oficcial. However, the responsibility of regulating improper conduct was given to the infra regulatory legislator, through the discipline of material aspects with the enactment of Law nº 8429/1992 (Administrative Misconduct Act - LIA), which are: their agents (Articles 1 and 2), acts (Articles 9, 10 and 11), penalties (Article 12), as well as its procedural aspects (Article 17). The central theme of the study refers to the competent court for the trial and processing of public agents through administrative misconduct proceedings, since they have a special function prerogative in the trial of common crimes (criminal liability) and responsibility crimes (political responsibility), this being a benefit exclusively associated with the position held by the agent. In this sense, since the misconduct proceeding is essentially punitive and provided with politicaladministrative aspects, with peculiarities of both features, many question the extent of the benefit`s application taking into account the law’s silence. The discussion will be further deepened, specifically with regard to public agents, within two aspects: (1) the political agents respond for administrative misconduct, as they have already answered for responsibility crimes in the politicaladministrative level? (2) if so, is the special function prerogative applicable? These issues have been subject of intense doctrine divergence, especially within law case studies. Thus, this paper aims to examine whether the special function prerogative should be extended to the administrative misconduct proceedings since, even if it has constitutionally been consecrated as a civil action, it is provided with relevant peculiarities, either because of its strong penalty content, especially with regard to the penalties stipulated beyond the financial compensation in ci vil law, whether because it involves political interests and hierarchical positions. Once the issue has been surpassed, the paper aims to analyze the filing of these suits against political agents, both because of its possibility to be filed (as they have already responded for responsibility crimes) also in relation to the competent court for trial (coming up again by the question of whether or not the special function prerogative is applicable).
Descrição
Palavras-chave
Corruption Public official Administrative misconduct Administrative misconduct act Political agent Responsibility crimes Special function prerogative Corrupção Agentes públicos Improbidade administrativa Lei da improbidade administrativa Foro por prerrogativa de função Agentes politicos Crimes de responsabilidade