O dano in re ipsa em matéria de improbidade administrativa e o prejuízo gerado pela dispensa ilegal de licitação: um estudo a partir da jurisprudência do Superior Tribunal de Justiça
The present research has as its object the analysis of the issue that involves the loss resulting from the non-observance of the regular bidding process (as in the case of direct contracting, when no situation of dismissal or unenforceable bidding is characterized) that, in the current understanding...
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| Formato: | postGraduateThesis |
| Idioma: | pt_BR |
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Universidade Federal do Rio Grande do Norte
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| Endereço do item: | https://repositorio.ufrn.br/handle/123456789/44191 |
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| Resumo: | The present research has as its object the analysis of the issue that involves the loss resulting from the non-observance of the regular bidding process (as in the case of direct contracting, when no situation of dismissal or unenforceable bidding is characterized) that, in the current understanding of the Superior Court of Justice - STJ, constitutes presumed damage (in re ipsa) to the Treasury. On the subject, as a rule, it is necessary to configure acts of administrative improbity provided for in art. 10 of Law Nº. 8,429 / 92 the presence of actual damage to the Treasury is required. However, in the case of the conduct described in item VIII of art. 10, the presence of actual damage to the Treasury is not required. This is because, in this situation, for the current and majority understanding of the Superior Court of Justice (STJ), the damage is presumed (damage in re ipsa). Thus, with the undue exemption from bidding, and thus preventing the public administration from hiring the best proposal, the public administrator causes damage in re ipsa, therefore it is not necessary, therefore, to demand the burden of proof from the author of the public civil action. about the topic. From this context, the present work will start from the scientific-legal review and analysis of the foundations that support the current understanding of the jurisprudence of the Superior Court of Justice, and which is justified based on the recent phenomenon of the increasing affirmation of jurisprudence as a source, this mark reveals in Brazilian law the prestige and preponderance of the decisions of the Superior Courts. It is a general objective to analyze whether it is legally possible, in the light of the 1988 Federal Constitution, as well as the infra-constitutional legislation, to admit the configuration of the infraction types of art. 10 (VIII), of Law 8,429 / 1992, based on a presumption of damage to the Treasury. Regarding specific objectives, we list the following: a) aim at the literature (state of the art) on the themes that involve the problem that is intended to be addressed, with the presentation of the understanding of the scientific-legal community; b) Identify the constitutional and under constitutional sources related to the matter of administrative law, public bidding and administrative improbity, with regard to the discussion of the theme; c) Analyze the norm of art. 10 (VIII), of Law 8,429 / 1992, its application and interpretation according to the provisions of Decree-Law 4,657 / 42; d) Investigate and present the legal foundations that support the current jurisprudential understanding of the Superior Court of Justice; e) present the legal consequences entailed to agents who violate the infraction types of art. 10 (VIII), of Law 8,429 / 1992, based on the dominant jurisprudence of the Superior Court of Justice. In view of the analysis of the legislation, the legal literature and the exposure of the dominant and minority understandings of the ministers that make up the Superior Court of Justice (STJ), it remains to be seen what the legal foundations that make up the STJ's jurisprudence, as well as legal reflections were proposed, theoretical and scientific criticisms and propositions on the proposed theme. |
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