O regime jurídico do silêncio administrativo

• Autor(a) principal: Lucena, Pedro Flávio Cardoso
• Data de Publicação: 2016
• 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/19391
• topic: Silêncio administrativo; Estado; Função pública; Administrative silence; Estate; Public function; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

The aim of the current paper is the legal regime of administrative silence. The legal bonds established between the Estate and the citizen are formalized, as a rule, by means of administrative procedures. In such way, once the applicant sends a requirement to the Public Administration and yet has no reply, it occurs what is nominated in the legal theory as: administrative silence. Considering both the effects inherent to such silence in the pragmatic scope of Brazilian Law and the discussions that arose in the core of Science, the research is justified by the aim of contributing with the evolution of an accurate understanding of the theme. The applied assessment is based on a dogmatic conception i.e.: the Federal Constitution of 1988 as the supreme norm to national legal system. From that conception it was formulated as a requirement inherent to the research the idea that the relationships developed within the Brazilian legal system occur from the demand of constitutional rational legal argumentations which support the decisions inherent to legislative, executive and legal estate functions constructed by systemic regulation as in a “chain novel”. Once administrative silence was properly investigated, it was demonstrated the differentiation among legal fact, legal act and desinent effects of the legal act, which leads to the conclusion that administrative silence has actually the legal nature of a legal fact. Due to its nature it was argued that administrative silence may generate effects from two legal scopes: the scope of legality and the scope of juridicity. Such effects, constructed through normative logical formulation, arise from measuring activities of public interests performed in the exercise of the functions of state. As a follow-up it was checked the effects of both positive and negative effects of administrative silence and they were related with the rules and principles of the Brazilian Legal Framework. Then it was obtained the main conclusion of the research: such effects must be interpreted as benefits to the applicant for, in the Brazilian Legal System there is no legal argumentative support to administrative silence. Lastly it was carried a study on the control of the administrative silence in the scope of the three functions of the Estate, taking the conclusion obtained beforehand as a premise