A aplicabilidade da lei de improbidade administrativa no direito brasileiro, sob a ótica do meio-termo aristotélico: da impunidade ao excesso de punitivismo

Abstract

This work exposes dysfunctions found, after the investigation of specific cases, in the applicability of the administrative misconduct law in Brazil, focusing on the processing of political agents. It restores the distortion in the attribution of the types contained therein, because, due to the semantic openness they are endowed, it is possible to file lawsuits for an act of unjustified administrative misconduct, as well as undue and unreasonable convictions, both based on non-republican interests, in clear disrespect for constitutional guarantees and the values that must register the performance of the legal operators, under the interference of elements not duly legalized. It was evident that the current scenario is highlighted by an exacerbated punitivism, which distances the performance of the holders in question from the realization of justice, a phenomenon driven by the feeling of popular frustration with political agents and by media pressures. In view of this context of legal uncertainty and, in particular, the seriousness of the sanctions contained in the administrative misconduct law, it was sought, guided by the classic Aristotelian lesson of the middle term, the establishment of a guideline to mitigate corrects problems, consistent in the use of dishonesty in the agent's performance as a northern criterion for finding a due measure. Thus, a solution was proposed that aims at the interpretation in conformity with the Constitution, in order to reach the middle term between punishing the acts that should be punished, with the observance of the constitutional guarantees of the defendant, and not punishing the acts performed without the requirement of dishonesty, as these should not be punished as if they were unlawful acts