Monografia (especialização)
As alterações na LINDB e consensualismo: compromisso de regularização e compromisso processual para compensação
Fecha
2021-09-10Autor
Hamilton Roque Miranda Pires
Institución
Resumen
The new normative provisions included in the Law of Introduction to the Norms of Brazilian Law (LINDB), (BRASIL, 1942), expressly revere the consensualism in the Brazilian legal system. This study intends to discuss the way in which the legislator made the option to contemplate consensualism, as an expression of contemporary Administrative Law, in the legislative amendment promoted in the "law of laws" by the normative provisions of Law n. 13.655/2018 (BRASIL, 2018), notably with the addition of article 26 in the LINDB, thus honoring a growing administrative movement for the administrative concertation. With this new legal instrument, the State now has legal, expansive and generic authorization for the adoption of consensual means of conflict resolution, including to remedy irregularities or legal uncertainties in the application of the rules of public law, even if they concern the exercise of police power. On the other hand, as a way to curb any deviation in the performance of control agencies and agents, a topic that will also be studied in this essay, the article 27 of the LINDB stands out, establishing the appropriateness of repairing damages in favor of the abnormal or unfair party prejudiced, reinforcing, once again, the consensualism in the Public Administration, also providing for the possibility of, having verified the right to compensation, a specific commitment to be entered into for this purpose. Thus, it takes an important step to avoid the abusive exercise of procedural measures that, many times, can affect the image or reputation of the Public Administration itself or of the citizen. Finally, it is concluded that LINDB and its articles 26 and 27, denote a clear motivation to consensualism and the peaceful solution of conflicts, a corollary of reasonableness and proportionality in the establishment and processing of administrative, controller and judicial procedures therefrom resulting, reinforcing the constitutional ideal of the Democratic State of Law itself.