A estrutura jurídico-dogmática do instituto jurídico do erro administrativo

• Autor(a) principal: Barbirato, Bruno Vieira da Rocha
• Data de Publicação: 2023
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/39333
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Erro administrativo; Erro grosseiro; Estrutura dogmática; Tipicidade administrativa; Culpa grave; Imputação; Administrative error; Gross administrative error; Dogmatic structure; Administrative typicality; Serious fault; Imputation

The institute of administrative error, made positive in our legal system by means of the article 28 of the LINDB (Introductory Law to the Norms of Brazilian Law), is a subject still little explored in Brazilian doctrine. This requires that a study of its normativedogmatic structure, necessarily adopt as support - in addition obviously to the legal system, the investigation of the syntactic, semantic and pragmatic elements that are extracted from the legal norm that made it positive, in comparison with the exploration of analytical and hermeneutic methods which guide the understanding of legal phenomenology. Administrative error can be presented both as a legal-dogmatic category and as a legal-positive category, when it will attract the incidence of the rule set out in article 28 of the LINDB and in article 12 of Decree No. 9,830/2019. As a legal-dogmatic category, an administrative error does not require the presence of the normative element of guilt, and can be objectively detected through the enunciation of the motivation for the administrative act, as well as through the identification of the regularity defect that results from it, factors which are alone sufficient to generate repercussions on the validity plan of the administrative norm. As a legal-positive category on the other hand, an administrative error, to attract the incidence of the rule contained in art. 28 of the LINDB, requires, at a minimum, the presence of the normative element of guilt, giving typicality to the administrative legal fact. It is only from that moment on that the administrative error will have its legal effects on the dimension of the agent's subjective liability, depending, however, on the presence of a qualifying and aggravating element of guilt, represented by the severity of the culpable behavior which backed the administrative error. The normative attribution of the harmful result to a certain culpable conduct, for the purpose of configuring the gross administrative error, requires, unfailingly, the presence of the qualifying element of serious guilt