Aspectos das relações especiais de sujeição no direito administrativo brasileiro: Natureza jurídica e pressupostos constitucionais

Abstract

The present study has as its object the special relationships of subordination, a legal category which lies at the root of a certain weakness in the principle of legality, in citizens rights and in the institutional systems foreseen to guarantee them. Public Administration, within this context, does not draw its power directly from the law, but from specific relationships which are woven with those under its management, the sources of the attributive legal foudation of those same powers. In the first moment this study focuses on the historical and political context of rise of the class in the Germany of the 19th. century, and the creation of the classical theory in the work of Otto Mayer, the theoretical basis which survives to the present, though, since then, considerably modified. In a second moment the notion is given concrete form in the shape of a concept, its constitutive elements being analyzed item by item, thus resulting in a positive delineation of the relationships of special subordination, as from the subjective point of view, that is to say, from that which is incorporated into the administrative organ ization thus very greatly limiting the application of the institution within precise boundaries. On that basis the various situations, both those subject to and those not subject to these relationships, are set out. Special relationships of power are understood in this study as those in which there is an effective and lasting insertion of that which is administered into the sphere of the organization of Public Administration, whether to serve this latter (as in the case of civil servants and military personnel) or to make use of it (as is the case oh the users of certain public services). At this point then one enters the sphere of that which is known as being of a legal nature and into the legal regime governing these relationships. The purpose of this study concludes by investigating the coexistence of these relationships with the principle of legality as creating certain points of conflict, as with the exercise of disciplinary power and the ionfluence of the enjoyment of freedom as the supreme value of these relationships. One deals also with the attributive mechanisms of power in the attempt to explain the most intensive powers that the administration wields in these relationships and, finally, with the degree of discretionary power which is seen to be reduced by the interest of the establishment, as it were, a kind of public interest