Por um discurso de justificação e aplicação para o direito administrativo sancionador no Brasil

Abstract

Brazilian Sanctioning Administrative Law has undergone an important and quick expansion process, especially since the 1990 s changes in social and economic regulation. Nowadays there are many different sanctioning techniques applied to diverse settings and sectors, each one with its own impact on people s lives and activities. However, legal thought on the subject threads unsurely, relying on generalist, excessively formal, inconsistent and contradictory ideas. Scholars often believe administrative sanctions are an immediate legal consequence to regulation infringement, necessary as an end-in-itself. They also often suggest the same defense principles should apply, and the same legal guarantees should be awarded to those facing administrative sanctioning charges as to those accused of committing a crime, suggesting States power to punish crimes (ius puniendi) and their authority to impose sanctions both have the same theoretical foundation. Nevertheless, these scholarly approaches have shortcomings regarding administrative infringement and sanctioning processes, because they do not consider questions such as what purpose does outlawing conducts and sanctioning them serve, and how does this process function. Concisely, there is need for legitimation to the theory and practice of administrative sanctioning. This breach in legal thought gives way to inefficient and arbitrary decisions. Hence the motive for this thesis: finding adequate justification theory, interpretation mechanisms and practical tools for the administrative sanctions legal field, considering how it can be instrumental to promoting public interests (not as an end-in-itself), while being distinct to criminal law. Therefore, I argue adequate theory must consider: i) administrative sanctions singular purposes and mechanisms, (ii) their characteristic instrumentality and its consequences, (iii) the functional aspects regarding to whom and how administrative sanctions law is applied. Given this theoretical landscape, the aforementioned considerations should rule administrative sanctions theory and all stages in its constant activities cycle: firstly, when building or reforming sanctioning regimes, so that they can be effective, efficient and responsive; secondly, when interpreting and applying administrative sanctions legal rules, a step deeply inspired by the principle of legality; thirdly, when reasoning on administrative sanctions decision-making, because arguing with only formalist, purely pragmatic, or excessively generic ideas, or inattentively to the field s singularity, can turn sanctioning practice into a mess. Although it may be a difficult task, an effort to create procedures can help implement the proposed method. There is no room for hermetic solutions that consider only a narrow idea of the adversarial principle. Instead, I offer a broader perspective, related to the different ways of thinking and applying sanctioning administrative law, especially as regards the delimitation of routines and priorities, the task of constructing models and tools and the type of analysis appropriate to this branch of the law.