Regulações expropriatórias: requisitos procedimentais e parâmetros materiais de identificação

Abstract

This dissertation investigates the phenomenon of regulatory takings from a broad conception of the institute of expropriation. Based on the premise that Article 5, item XXIV, of the Brazilian Constitution deals with every kind of sacrifice of property rights it is clear that the state can not rely on the regulatory mechanism to expropriate without compliance with the constitutional requirements. The government can do this only through the constitutional way of expropriation, following the due process that guarantees the expropriated prior compensatory and just solution. In addition to the express wording of article 5, item XXIV of the Constitution, other provisions of the constitutional text itself legitimize the same conclusion, as do arguments based on economic reason. In this context, it is analyzed how the regulatory process can absorb the procedural requirements of expropriation. Does Act 3.365/41, considered the general law on expropriations in Brazil, offer suitable instrument for this purpose? If not, is it possible to propose an ideal procedural model to effect regulatory takings? Could the Regulatory Impact Analysis (RIA) serve this purpose? The answers to these questions require the recognition that expropriation due process must be permeated by the principles of participation, consensuality, transparency and efficiency. However, it is not always easy to identify the potential expropriation of regulation. After all, when is the regulation transmuted in expropriation? To solve the so-called "taking issue" is certainly one of the biggest challenges of contemporary public law. In Brazil, however, the doctrine has not made much effort to solve it. The parameters proposed by the Brazilian doctrine are insufficient and often inadequate to identify regulatory takings tests proposed by the brazilian literature are insufficient and often inadequate to identify the expropriation character of regulation. For this reason, it resorts to the American scene, where regulatory takings have been the subject of thorough studies and applied incase law for more than a century. These studies and precedents from the United States are therefore fertile ground for understanding the subject. At the end, in the light of the Brazilian legal system, material parameters are proposed to identify expropriatory traces of regulation.