Name: ALEXANDRE DOS SANTOS LOPES
Publication date: 15/05/2018
Advisor:
Name |
Role |
|---|---|
| HERMES ZANETI JUNIOR | Advisor * |
Examining board:
| Name |
Role |
|---|---|
| CLAUDIO PENEDO MADUREIRA | Internal Examiner * |
| HERMES ZANETI JUNIOR | Advisor * |
Summary: This study aims at establishing a dialogue between the theory of judicial precedents, based on the model of precedents of the new Code of Civil Procedure of 2015, and Public Administration, with a contributory impact in the exercise of administrative functions. In order to do so, the first part seeks to identify the current stage of the relationship between the constitutional order and the administrative legal order, identifying a substantial intimate relationship between Public Administration and the constitutional value system, opening a significant space for discussion and analysis of the phenomenon of judicial precedents in the administrative legal area. The objective is to investigate the Brazilian legal model of conflict resolution involving a Public Administration (whole jurisdiction) with paradoxes and hybridity that must at least be considered for adequate assimilation of a model of normative precedents in an administrative environment. Subsequently, in the face of the crisis of classical paradigms, such as the overcoming of legality (through administrative legality), the supremacy of the public interest over the private interest (through guaranteeing effective protection of the public interest) and the re-reading of the dogma of separation of powers, new spaces are opened to widen the debate about the adhesion, by the Public Administration, to a specific and proper model of normative precedents to focus on the administrative sphere. In the second part, the process is recognized as a phenomenon of power/artificial, as a cultural element; analyzing the passage from procedural/reasonable procedural law to rational/apodictic procedural law (of iudicium and processus), with the consequent clamor for return to judgment and for the application of law based on an ideal of justice (claim to correctness). The need for balanced participation in the cooperative and symmetrical civil process is identified throughout the process, in which the State Judge acts in the concept of justice of coordinated/parity authority, as responsible for the judicial review. The formalism-valuation is identified as a methodological phase that is constitutionally adequate to catalyze and promote the dialogue proposed here. Judicial precedents are rationally formed norms, whose model is rational by the incidence of the universalization rule, which states that judges and courts must decide with a pretense of universality (universalizable decisions). The precedent-case must not be formed to solve only the concrete case, but of all those in analogous or similar situation. Following the constitutional inflows, the CPC/2015 proposed a model of judicial, normative and formally binding precedents, to decisively impact the Brazilian legal system. It was proposed to analyze the compatibility between judicial precedents and the administrative juridical regime, having as theoretical reference the model of formally binding normative precedents, as described in the dogmatic core of the Brazilian model of precedents. The reflexes, variables and conditional factors of this significant event in the context of administrative legal relationships, associated with specific normative legal standards and the high rate of litigiousness o Public Power, are analyzed. Judicial precedents are norms, that is, precedent norms, revealing aptitude, due to the external effect inherent to it, to comprise the normative content of administrative legality. For this end, a specific and proper argumentative burden of the judicial decision is needed (external justification concerning the public interest). Once the requirements and the legal-functional criterion have been met, the public administrator must recognize and internalize the precedent norm in the administrative environment (hetero-binding). It is about a cooperative action that transcends the procedural aspect, impacting legislators, judges/courts, attorneys, and public administrators.
KEYWORDS: Process - Judicial precedents - Public Administration
