masterThesis
Arbitragem nos contratos administrativos: o limite decisório na avaliação das sanções administrativas
Fecha
2021-06-30Registro en:
SOUZA, Vinícius Augusto Cipriano Maniçoba de. Arbitragem nos contratos administrativos: o limite decisório na avaliação das sanções administrativas. 2021. 237f. Dissertação (Mestrado em Direito) - Centro de Ciências Sociais Aplicadas, Universidade Federal do Rio Grande do Norte, Natal, 2021.
Autor
Souza, Vinícius Augusto Cipriano Maniçoba de
Resumen
The way of administering the State was not always delineated by democratic principles. The structuring
of the managerial model of Public Administration gave rise to the approximation of the administered
and the State's self-assessment in its role in realizing social and economic rights. With this perspective,
the construction of this study permeates the entire historical foreshortening of the state administration,
inferring its respective evolutionary process and the chain reaction resulting from the anxieties of each
moment the effects arising from the process of consensualism that, for its time, it provided opportunities
for social participation in decision-making. This prefacial approach allows for a critical examination of
the (un)availability of administrative sanctions and their consequent arbitrability. The justification for
this is based on the need to scrutinize the legal possibility of implementing the arbitration mechanism
in the analysis of acts of the State's disciplinary power, to imprint administrative efficiency on the
underlying issue involved, for example, in the administrative contracts that they are paralyzed due to a
legal dispute in this regard. And if it is possible to use this mechanism, the analysis would stop at the
limit that should be established for the arbitrator in the assessment of administrative sanctions. Timely,
this dissertation performs a comparison of the legal nature of the administrative sanction after the
innovations arising from Federal Law nº. 12.846/2013 – Anti-Corruption Law – with the intention of
demonstrating the availability of these interests and their consequent arbitrability. It is concluded,
therefore, that the arbitrator's analysis can be made regarding all the structural aspects that motivate the
application of administrative sanctions, except for the limitation that this extrajudicial judgment must
adhere to legal criteria in the decisional examination of the submitted question. This research is based
on an analysis of specific literature on topics of administrative law, constitutional law, and procedural
law, specifically sanctioning administrative law, in addition to the dimensioning of constitutional and
infra-constitutional legal norms. The analysis is based on a systemic interpretation of the administrative
action of sanctioning, defining it as discretionary and of a business nature.