Âmbito de validade da Lei Federal de Processo Administrativo (Lei nº 9.784/1999)

Abstract

The scope of the Federal Law nº 9784/1999, Administrative Process Statute (LPA), is not restricted only to the Federal Public Administration. The Constitution of 1988 brought the administrative process closer to the judicial process, creating a similar legal regime arising from the due process clause. Regarding public function, this regime has been regulated by the LPA. Article 1st of the LPA limited its scope to the Federal Administration and to the Legislative and Judiciary Powers of the Federal Government when acting in the administrative function. Such article is not compatible with the Constitution. Compiling the opinions of several jurists, analyzed under a dialectic method, the development of the administrative process theory has been demonstrated, as well as divergences relating to the terms administrative "process" and "proceeding" and the scope of the LPA itself. We conclude that proceeding is a general term and process is a specific term, qualified by the right of controverting. Proceeding is a relation between acts and facts, and process is a relation between people. The administrative process always requires the participation of the interested individual with the opportunity to controvert. We showed that, according to the Constitution, the power to legislate about administrative and judicial process rights belongs only to the Federal Government and, in regard to proceedings in process matters, the power is shared with the states and the Federal District. The municipalities have complementary power. We have aimed at showing that the LPA has principles, process and procedural rules in process matters. The principle and process rules are mandatory to all members of the federation (states and municipalities), in addition to the procedural rules of a generic nature. This understanding does not violate the federative principle; on the contrary, it affirms it, because such principle has as a premise the logical and rational division of powers to better fulfill the state purposes. We conducted a qualitative research of jurisprudence which proves some of the discussions that are present in our work. The LPA, seen as national "Administrative Process Code", accomplishes the goals of maintaining the unity of the administrative process regime, as well as of making effective the constitutional ideal of comprehensive protection of the citizens interests