Discretion and the technical appreciation of the public administration. / Discricionariedade e apreciações técnicas da admistração pública.
AUTOR(ES)
Daniela Cordeiro de Farias
DATA DE PUBLICAÇÃO
2005
RESUMO
One of the most relevant distinctions made between the administrative acts is the one that separates them in ruled and discretionary acts. The present work is dedicated to the study of discretion and the technical appreciation of the Public Administration. Such study is controversial and demands concentrated doctrinal study of its various aspects in the present time, when the amplification of the administrative discretion for the return of the so-called technical discretion is advocated. For approaching this matter, we started with the distinction between ruling and discretion, as well as its relation with the principle of legality, given that the discretional performance, in the State of Law, means freedom inside the law, in the limits of the rule of law, not confounding with arbitrary decision. Next, we went through the localization of the discretion in the statics and the dynamics of the Law, addressing its underpinnings and the relation that could exist between the so-called indeterminate legal concepts and the administrative discretion, making a brief incursion into the national and foreign doctrine. In face of the expanding technological evolution and the praise of technical knowledge, an increasing technical slant for the use of concepts, rules and actions that develop according to specialized scientific knowledge reflected in the regulating legislation of the administrative activity. As a consequence, the various meanings attributed to the expression \\\"technical discretion\\\" were examined and each one of the objects identified for such expression were analyzed in order to verify if the performance of the Administration before technical concepts consisted of a third category of administrative acts, with a legal regimen different from the ruled and discretionary acts. Finally, the question relative to the limits of administrative discretion and the extension of judicial control on the discretionary acts were addressed, approaching, also, the judicial control of the so-called \\\"technical discretion\\\", presenting conclusions.
ASSUNTO(S)
discretion poder discricionário - brasil public administration. atos administrativos - brasil administração pública nenhuma abaixo technical appreciation apreciações técnicas
