Utilização do direito privado pela administração pública: limites e sujeições / Utilisation of private law by public administration: limits and constraints

AUTOR(ES)

Luciano Silva Costa Ramos

DATA DE PUBLICAÇÃO

2010

RESUMO

The present study aims to analyze the use of institutes and forms of private law by public administration, intending to understand how the exercise of administrative function works in that hypothesis, the limits and the constraints that this conduct will be submitted. Starts from the fact that private law was not originally designed for the pursuit of public interest, at least not as an exercise in public function, but, nevertheless, is not absolutely incompatible with it, as long as they are proceeded properly adjusted . For this to occur, it is necessary to check the guiding principles of this area, as well as their relevance to achieving the public interest by the Administration. Certainly, there are situations where it is inconceivable that the administrative function be exercised with the use of private forms, being clear this condition when is made necessary the use of public powers. In order to specifying the incidence of Private Law in the conduct of public purposes, we initially outlined the called Summa Divisio, which notes the existence of two specific areas of Law, with principles and values inherent in them, which creates its division into Public Law and Private Law, without neglecting the fact that these areas are not exhausted, but are influenced by each other, including acting beyond its original edges. Properly established the requirement of this bipartition of law, we proceed to the analysis if the Public Administration is put in a position analogous to private individuals when using the Private Law, realizing that this situation does not occur, since the autonomy of will is incompatible with the exercise of public function, because it is featured by the legal imposition of an obligation, which is not available to the Administration. Therefore, the ways of Private Law instrument the pursuit of public interest without turning the public administration in a member of the private initiative, but it does not deviate of the principles inherent in the legal regime of its own. In doing so, we can conclude that the Government does not submit itself fully to a system of private law, because of its inexorable focus on principles of public law. Thus, it is constacted the existence of a private administrative regime for these cases, wich establishes the limits and constraints of the Public Administration when using Private Law to perform the public interest

ASSUNTO(S)

direito limits limites administração pública constraints direito administrativo privado public administration sujeições public private law private administrative regime regime administrativo privado

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