O interesse público nas sociedades de economia mista / The public interest in joint ventures

AUTOR(ES)

Natália Bertolo Bonfim

FONTE

IBICT - Instituto Brasileiro de Informação em Ciência e Tecnologia

DATA DE PUBLICAÇÃO

16/04/2012

RESUMO

The paper discusses the public interest in joint ventures as a type of company that combines state and private participation in its capital stock, and that it constitutes in an instrument of the State for the implementation of public policies. It analyzes the elements that characterize them and the internal and external problems resulting thereon, seeking to demonstrate that their whole structure revolves around the public interest that gives them rise. Then it goes through the intricacies of the term public interest by investigating its ideological aspects and understanding the concept in the course of historical and cultural evolution of the legal and political thought. It ensures that its essence of indeterminate legal concept does not remove the possibility of its best application in each specific case, given that its core remains open to reality. It considers that, with the establishment of the Democratic Rule-of-law State by the Federal Constitution of 1988, that raised the human dignity as a fundamental principle of social-economic order, public interest began to be a way to ensure satisfaction of private interests, by that you cannot make the mistake of asserting that the public interest endangers the fundamental rights, giving the expression an authoritarian character that, in fact, it does not have. It brings forward the divulged idea about supremacy of the public interest over the private interest, not covered explicitly by the Constitution, but widely accepted by the Administrative Law as the principle that elects a mandatory and unavailable purpose of the Administration and its agents. It presents the current resistance in Brazilian doctrine between the jurists current who advocates the reconstruction of the public interest supremacy principle, based on the new look given to it by the Federal Constitution, of guarantor of fundamental rights, and the current that defends the deconstruction of the principle that, in their opinion, endanger the private interests, which would require a court to deliberate between conflicting interests. Then it analyzes the public interest as a fundamental element of the state activity and it combats that the States participation in the direct exploitation of economic activity has subsidiary nature; the State not only may, but must intervene in the economic order, in order to ensure the best interest public. In its final part, this paper brings, specifically, the understanding of the public interest in joint ventures based on the classic questions that arise from the actions of the State in a macroeconomic context, from the perspective of controlling power, companys social function, profit and competition. Its conclusion is that the public interest in joint ventures is confounded with its own purpose and should be understood both as an element that guides all aspects of its constitution, and as an element that directs the State action in economic activity.

ASSUNTO(S)

public interest intervenção do estado (direito econômico) joint ventures joint venture intervention direito econômico economic order sociedade de economia mista state

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