A aplicação retroativa da prescrição intercorrente inserida pela Lei n. 14.230/21 na Lei de Improbidade Administrativa: um reflexo dos fundamentos de um estado democrático de direito

• Autor(a) principal: Pereira, Eduarda Mascarenhas
• Data de Publicação: 2022
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/31772
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Improbidade administrativa; Direito administrativo sancionador; Retroatividade da norma mais benéfica; Prescrição intercorrente; Administrative dishonesty; Sanctioning administrative law; Retroactivity of the most beneficial norm; Intercurrent prescription

The present study had as its central theme the analysis of the substantial changes implemented in the Administrative Improbity Law from the enactment of Law n. 14.230/21, especially regarding the retroactive application of the new §5, of art. 23, which instituted the intercurrent prescription in the context of administrative improbity actions. Starting from the hypothesis that the STF adopted strictly formal criteria for the attribution of a civil nature to the actions of improbity and, thus, established the non-retroactivity of the new statute of limitations of the LIA, the present study sought to verify whether this thesis reveals itself materially in line with the values of a Democratic State of Law. In order to do so, using the deductive method and extensive bibliographic research, a study was carried out on the legal regime applicable to Administrative Improbity, its insertion within the scope of Administrative Sanctions Law and to what extent the principles of Criminal Law dialogue with this area, especially the principle of retroactivity of the most beneficial law, as well as a brief analysis of the institute of intercurrent prescription. Finally, it was concluded, based on a substantial analysis of its sanctions, that the LIA is part of the field of Administrative Sanction Law which, although not subject to a legal regime identical to that of Criminal Law, has in relation to this area certain points in common – the subsumption to constitutional principles, which seek to provide extensiveness to fundamental rights and guarantees, especially those that restrict state interference in individual rights, with emphasis on the retroactivity of the most beneficial norm. Furthermore, having demonstrated the importance of the institute of intercurrent prescription in relation to the observance of legal certainty and in the reasonable duration of the process, it was evident that the retroactivity of the intercurrent prescription in administrative improbity actions is a measure inherent to the basic principles of a Democratic State of Law, especially substantial due process