Os novos mecanismos de controle da discricionariedade judicial da Lei de Introdução às Normas do Direito Brasileiro

• Autor(a) principal: Carreiro, Genilson Rodrigues
• Data de Publicação: 2019
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://tede2.pucsp.br/handle/handle/22858
• topic: Função judicial; Discricionariedade judicial; Brasil - [Lei n.13.655, de 25 de abril de 2018]; Judicial process; Judicial discretion; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

The increase in judicial function has resulted in the retraction of zones of immunity from state acts and the emergence of a new institutional design, whose background is the progressive complexity of society and public administration, the erosion of certainty with the permanent dilemma between plurality of answers and the correct answer. However, judicial review must not result in the absorption or annihilation of administrative functions, much less in the allowance of whims and arbitrariness. Giving the last word is not an activity absolutely and completely isolated from other state functions. It fits precisely into the dynamic and changing notion of tripartition of powers, all independent but harmonious with one another, which recommends a permanent effort of self-restraint and highlights the problem of the judge’s decision-making powers. In turn, unable to keep pace with the changes that continually redefine social relations, Law becomes ductile and a source of unpredictability. It is in this scenario that, aiming to raise the levels of legal certainty and efficiency in the creation and application of Public Law, Law no. 13.655/2018 instituted new reasoning mechanisms supported by three main axes: (i) reinforcement of the duty of motivation; (ii) consideration of the manager’s real obstacles and difficulties and practical circumstances that have imposed, limited or conditioned their action; and (iii) the measurement of practical, legal and administrative consequences. This paper aims to examine the impacts of these new tools on judicial discretion and to verify if the pursued ends were achieved