Detalhes bibliográficos
| Ano de defesa: |
2017 |
| Autor(a) principal: |
Fernandes, Felipe Gonçalves
 |
| Orientador(a): |
Martins, Ricardo Marcondes |
| Banca de defesa: |
Não Informado pela instituição |
| Tipo de documento: |
Dissertação
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| Tipo de acesso: |
Acesso aberto |
| Idioma: |
por |
| Instituição de defesa: |
Pontifícia Universidade Católica de São Paulo
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| Programa de Pós-Graduação: |
Programa de Estudos Pós-Graduados em Direito
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| Departamento: |
Faculdade de Direito
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| País: |
Brasil
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| Palavras-chave em Português: |
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| Palavras-chave em Inglês: |
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| Área do conhecimento CNPq: |
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| Link de acesso: |
https://tede2.pucsp.br/handle/handle/19732
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Resumo: |
The Brazilian State is governed by a democratic Constitution that enshrines several principles, which are spread through the Legal System and extend to all the branches of the Law, including administrative law, and as a consequence reach disciplinary law, a sub-division of the matter that will be specifically approached in this study. Among said long-standing principles is the principle of legal security, which, among other aspects, ensures citizens a minimum foreseeability when it comes to government conducts. Nevertheless, over history one has accepted (including a significant portion of legal scholars to date) that the formal legal definition of punishable conducts under the disciplinary law (a sub-system that provides for the sanctioning of civil servants) were to be distinct from that applied to criminal law, where one not only recognizes but also requires a clearly delineated legal concept as a means to afford citizens an individual guarantee, in order that the conduct defined as an offense in such system be necessarily described by the law in a clear and accurate manner, in that no generic or vague concepts be accepted. Accordingly, in this study one will analyze the requirements for enforcement of administrative sanctions, with a special focus on disciplinary sanctions, as opposed to the system of guarantees afforded to civil servants by the Brazilian Constitution of 1988 and the grounds underlying it. The analysis will be made from a historical and dogmatic study of the theories that have influenced (and that still influence, to a certain extent) the interference exercised by the Public Administration in those who engage in special relationships of power with it. Therefore, one shall scrutinize the issues concerning the definition of generic punishable conducts under the disciplinary law, historically justified by the so-called special relationships of subjection, in light of the guarantees established in our Constitutional State, particularly legal security, democracy and the fundamental right to a proper administration. The analysis will look into the need for an objective perception of punishable conducts, if not through legislative amendment (a task we are not undertaking here), then through the organization of the chaotic whole of legal rules, by setting out hermeneutical guidelines that will function as limits to public authorities and will thus contribute to an analysis of the matter that is more compatible with the values found in the Federal Constitution |
