Atos de improbidade administrativa e o elemento subjetivo: uma análise sobre a modalidade culposa

Abstract

The Administrative Improbity Law (No. 8.429/1992) was created to regulate the article 37, paragraph 4 of Federal Constitution of 1988, becoming an important normative instrument on the combat to administrative improbity and corruption. However, Law No. 8.429/1992 presents open character norms, e.g. the prevision of the guilty modality of the administrative improbity act that causes damage to public treasure, as announces the article 10 of the referred law. The legislator mentioned the subjective element of fault, but didn’t specify which kind of fault would matter to the setting of an administrative improbity act, and if this gradation would be possible. Such omission opened way to doctrinal and jurisdictional divergences about this application, resulting, also, in a juridical insecurity to the adjudicated. Towards these questions, the current work aims, generally, to analyze the existant divergences in relation to the guilty modality of the improbity act and the possibility of gradation of this subjective element on the unrighteous act. For this, it specifically explains about the public agents, the administrative constitutional principles and, finally, it presents the controversies about the guilty act. This way, the research characterizes itself as bibliographical, descriptive, documental, exploratory and has as scientific method the dedudctive. Towards this, the recognizement of the setting of the guilty modality as an improbity act must be ruled by proportionality and reasonableness, once Law No. 8.429/1992 aims the sanction of unrighteous, dishonest acts, and not purely unable.