Da responsabilização omissiva do administrador por ato ímprobo de seu subordinado

Abstract

This work is proposed to examine the administrator omission accountability before the law n. 8.429/90, by act of administrative misconduct practiced by his subordinate, considering the analysis of current case law and doctrine regarding bad faith. As the administrative misconduct assumes attack the principles of public administration, as well as awareness of its practice (action) or abstention (omission), tries to establish a connection between the practice of public and broker act in bad faith. The simple omission in the exercise of the mandate, unattended willpower oriented to violation of law, does not act misconduct, which could set up an act merely irregular, punishable by administrative adjustment. What if you want to demonstrate is that with disability and preparation of the administrative agent and not bad faith or dishonesty, the hypothesis may be illegality, the irregularity of the act, and not misconduct. After all, it cannot be concluded that the mere failure to comply with legislation already would configure act of misconduct punishable by applying sanctions, without at least question about the existence of bad faith of the public agent. Furthermore, although the purpose of law is to combat corruption, which prevents maturation of Brazilian Public Administration, the relevant punishments should be applied in this case, with respect to the principles of broad defense, audi alteram partem and of access to legal aid.