A improbidade processual da administraÃÃo pÃblica e sua responsabilidade objetiva pelo dano processual

AUTOR(ES)
DATA DE PUBLICAÇÃO

2007

RESUMO

Both the principle of the due process of law demand good will of the claimers, brought up by the veracity and the range of their statements, by the respect to the rights of other parties as well as to legal decisions through the abstention of delaying acts. The Brazilian Civil Code states the good will duty although it makes use of insufficient instruments of control, which are, also, incoherent within themselves. The doctrine contributes to the ineffectiveness of the procedural system with various thesis inherited from the Portuguese Ordinations, from the Positivism as well as from the Liberalism, such as the appeal to subjective good will to the confrontation of the procedural unlawfulness, the restrictiveness of the rank of unlawful acts, and the negative of powers of sanction inherent to the jurisdiction. The elasticity of the good will duty and of its sanctionary permits a greater adherence of the system to the actual case. The procedural improbity becomes greater when materialized by the State, which conceals relevant information, appeals abusively, and does not meet the judicial demands. The proliferation of procedural prerogatives of the State, in hindrance of the effective process and without undue adjournments, harms the constitutionality bloc. The State cannot cause individuals to fact its administrative deficiencies. The supremacy of public interest is incompatible with the principle of proportionality when it recommends the consideration of all interests, whether public or private, involved in the concrete lawsuit. In European Law, the âobjectiveâ profile of the administrative quarrelsome is questioned by the jurisprudence of the common Courts, being of foremost importance the strong tension between the parties, through the reinforcement of the role of the judicial ward. In Brazil, the Special Federal Courts stand as a paradigm of the democratic role of the State and show the lack of necessity of several prerogatives, even the precatory letters. The State does not detain âimplicit prerogativesâ concerning the control of the procedural probity. The principles of administrative morality and of procedural good will are the outcome of the same ethical unity. In hindrance of the jurisprudence of the brazilian Superior Court of Law (Superior Tribunal de JustiÃa), the objective responsibility of the State due to procedural improbity and, most of all, due to side effects of the process is an outcome of the 37th Article, 6th Paragraph of the Constitution of the Republic

ASSUNTO(S)

probidade processual procedural damage dano processual multa processual responsabilidade do estado dever de boa-fà direito judicial control of the state responsibility of the state good will duty evil will litigation procedural probity controle judicial do estado litigÃncia de mÃ-fà procedural fine prerrogativas processuais procedural prerogatives

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