Culpa e erro grosseiro na responsabilização do agente público por ato de improbidade administrativa

• Autor(a) principal: Vieira, Filipe da Silva
• Data de Publicação: 2021
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações do Mackenzie
• Texto Completo: https://dspace.mackenzie.br/handle/10899/28420
• topic: improbidade administrativa; culpa lato sensu; lei de introdução às normas do direito brasileiro; erro grosseiro; compatibilidade; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO

The punishment for administrative improbity is one of the ways found by the State to confront the practice of corruption by the public agent. An integral partof a defense microsystem of administrative morality, it is placed as a manifestation of the state’sius puniendi, since its recognition implies the application of a penalty of a punitive nature. It is not, however, subject to the rule of criminal law, butto the sanctioning administrative law. As a common coreto the two rules derived from the Sanctioning Law, there is relevance in the identification of a subjective element that accompanies the conduct of the agent (in this case, of the public agent). Without the measurement of the existence ofintentionalmisconduct or guilt in the conduct, one cannot speak even in the existence of administrative misconduct. The study of what doctrine and court decisionsmean by misconduct and stricto sensuguilt in improbity is relevant per se, but it gains even greater relevance when it is found that it was included in Brazilian legislation, in the context of the Law of Introduction to the Norms of Brazilian Law, the figure of gross error as if substitute was the strictosensuguilt. The change occurred through the elaboration of the Law on Safety for Public Innovation, which, among other things, intended to bring greater security to decision-making by the public agent, without subjecting it to the risk of personal accountability for any and all misunderstandings, since researcheshaveidentified the existence of the phenomenon of the blackout of pens, a general fear of accountability for decisions and opinions of agents and public managers. Within this personal responsibility, the inclusion of accountability for an act of administrative misconduct is supported. In view of this legislative change, and considering the sanctioning context in which administrative improbity is found, the doubt about the compatibility or not between the concepts of gross error and stricto sensuguilt is naturally exuded. After all, if relevant is the subjective element for the measurement of administrative improbity, even more relevant it is to understand whether the Law of Introduction to the Norms of Brazilian Law brought some kind of antinomy or if, at least, it established a new form of interpretation of stricto sensuguilt in the accountability for an act of administrative improbity.