A transação como método alternativo de resolução de conflitos pela administração pública

Abstract

The objective of this research is to demonstrate the possibility of using transaction as an alternative method of conflict resolution by Public Administration. The approach focuses on traditional paradigms through which Administrative Law has developed and built the legal and administrative system notion. The authoritarian and centralizing feature acclaimed by the Administration no longer fits in the constitutional bias of Administrative Law. The Rule of Law assumes the guarantee of fundamental rights, including democracy itself, which requires more than a political democracy, expressed through the power of people in electing their representatives, and demands an active participation of citizens. So it must be in managing public affairs, in the relationship between the Administration and the administered. Imposing unilateral solutions, designed and developed inside the public administrator offices, disconsidering interests and demands brought by society itself has no longer place in this new democracy, the participatory democracy. Then, the State proceeds to call the society, the ultimate purpose of Administration, to assist in the development of its purpose, the pursuit of general interest. In this regard, alternative methods of conflict resolution tools serve for the operationalization of solutions, especially when they involve the administration and the administered. The paradigm of public interest supremacy is overcome to justify violations of the citizens’ rights in favor of the Administration interests, and negotiated solutions are accepted, allowing the Administration to give in and transact, leaving secondary interests, in order to achieve public welfare.