A evolução do controle jurisdicional dos atos discricionários

Abstract

This work was dedicated to reviewing the evolution of the jurisdictional control of administrative discretion in Brazil. Initially, it sought to contextualize the issue of control of Public Administration in general, making it compatible with views of Administrative Law that are less traditional in national doctrine. Multidimensional theories of Administrative Law and the administrative act were analyzed, highlighting perspectives often neglected by the unidimensional view traditionally embraced in Brazil and the possible impacts of these differences on the definition of the intensity of judicial control and the effective exercise of the review of administrative acts by the Judiciary. Having developed this initial panorama, the evolution of the control of discretion in the national doctrine was analyzed, first describing its foundations and then the elements of the administrative act and the controversies involving the presence or not of the discretionary character in each one of them. Specifically in relation to the control itself, the evolution of techniques traditionally used by the Judiciary was demonstrated, from the theory of misuse of purpose, passing through the theory of determining reasons and finally the control based on legal principles. The central point of the work is the analysis of theories related to the syndicability, or not, of the merit of the administrative act by the Judiciary. In summary, the work describes the evolution of the main theories supporting the immunity of merit and the gradual insertion in the national doctrine of doctrines influenced by the multidimensional perspective of Administrative Law that seek to circumvent the difficulties derived from traditional dogmatics. Finally, the study analyzed the permeability of these new theories in the courts, taking as a parameter the most recent jurisprudence of the Superior Court of Justice. At the end, the conclusive syntheses of this work are presented.