A motivação como instrumento de controle do ato administrativo
AUTOR(ES)
Vera Maria Louzada Velloso
DATA DE PUBLICAÇÃO
2006
RESUMO
The present study aims at approaching motivation as one of the most important instruments of control of the administrative procedure, whose foundations are a result of the Democratic Rule-of-Law State and other constitutional principles of the Public Administration. For this purpose, beginning from the administrative procedure and from its systematization, motivation was addressed regarding its structure, concept, legal nature, foundations and teleology. The subject is not new, however, it is presented renewed facing the Federal Constitution of 1988 and the general laws of administrative process in the Brazilian legal system, chiefly its material dimension, as well as its formal dimension, with repercussion in the vices of motivation and, as a consequence, in the regimen of invalidation (different reactions of the legal system) and control of the administrative procedures. The plurifunctionality of the motivation discloses its multiple faces, including the relevant contribution of the comparative law and of the jurisprudence of the Brazilian and foreign courts. The control of the administrative act shows as one of the most important purposes of motivation, with emphasis in the jurisdictional control in the scope of the external control, beyond the prelitigation or preventive in the internal scope and other modalities of external control. The study did not forget the other functions of motivation and its interlacement with other aspects regarding the subject. The Democratic Rule-of-Law State and other principles of the Public Administration to which the motivation ties do not match with the administrative performance without control. The study dedicated special attention to the control of the discretionary aspects of the administrative procedure, in which the motivation is important due to value appreciation. It privileged the control of the limits of the discretionarity, either in the scope of the indeterminate legal concepts or not, facing the misunderstood administrative merit, in which the motivation acts at the same time as a instrument of control and limit to the administrative discretionarity. Conclusive syntheses are, finally, presented
ASSUNTO(S)
direito administrativo controle guarantee controle jurisdicional de atos administrativos -- brasil motivation control motivação garantia
