Estado pós-regulador: contribuições teóricas para a atuação estatal

• Autor(a) principal: Pinheiro, Alexandre Pereira
• Data de Publicação: 2021
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/24444
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Agências reguladoras de atividades privadas - Legislação; Estado regulador; Independent regulatory commissions; Regulatory State

The present thesis seeks to contribute to (re) orient the role of the State in the context of what is called the regulatory society. For this purpose, the notion of a Regulatory State will be studied and its conceptual overcoming will be proposed for the notion of a regulatory society. Such a study is thought of to be essential to apprehend the dynamics of regulation that must be taken into account by the regulator, especially due to the recognition of a division of regulatory power between the State, companies, interest groups and consumers/users. Upheld by these premises, the next objective is to study a theory that can provide lines of action for the State to develop a regulatory activity congruent with the Regulatory Society. This theory must be constitutionally adequate and, in particular, respect the public interest and value free enterprise and self-integration of the will. It is proposed, here, the adoption of the Smart Regulation theory, considered, through the lens of this study, an improvement of the Responsive Regulation theory, which has been widely debated and adopted, albeit partially, by several Regulatory Agencies. The remainder of the thesis proposes to explain the different directives (principles, as its authors call them) that the State must follow for an optimal performance - or, more precisely, for regulatory excellence - in view of the current regulatory complexity: it must be given preference for combinations of strategies that incorporate a wide range of instruments; preference should be given to combinations of strategies that incorporate a wide range of institutions; preference should be given to less interventionist measures; one must seek to model a strategy pyramid that incorporates these strategies in a rational and transparent way for economic and social actors. Throughout the study, there is a dialogue between these principles and the Brazilian legal instruments - proposed, for the most part, by the administrative law doctrine - about acceptable levels of regulatory intervention, their limits, scope, addressing, in particular, the central role of free enterprise, subsidiarity, self-integration of the will and proportionality