Desapropriações: análise crítica do marco legal das expropriações administrativas à luz do princípio democrático

Abstract

This study seeks to critically examine the Brazilian law of “expropriation for public use”, based on “principle of democracy”. There is a consensus by the legal doctrine about the benefits and necessity of democratization in the decision-making processes. In this days, democracy cannot be misunderstood as a set of institutional formats that reflect mere aggregate of votes and who have legitimate representative agents by electoral process. Participation is not only a right which aims to address the inadequacies of representative democracy, but is mainly a way for citizens to have their legitimate interests and views taken into consideration by state decisions. Currently, the public administration faces a big challenge of how to adapt public management instruments to the new democratic concepts. “Expropriation for public use”, such as regulated by the Brazilian legal order, is one of these institutional practice that reveals an autocratic and non-solidary government action, not compatible with the normative principles of democracy, as regulated by the 1988 Constitution. Supported by theoretical precepts that characterize Deliberative Democracy, the “principle of democracy” requires changes in the interpretation of specific rules of “expropriations for public use”, such as those relating to: expropriation of public property; the importance of extrajudicial administrative phase; the role of the judge in the lawsuit for expropriation; the requirements for an judicial order permitting to take early possession of the expropriated property rights; the delimitation of equitable compensation, and the outlines of the right of retransfer the expropriated property. In addition, based on the legal precepts of the “principle of democracy”, institutional change is required to regulate the procedure of the stage prior to the “declaration of public utility”, for deliberative verification of “public use” of the expropriated property. To achieve the proposed objectives, this thesis will attempt to provide normative guidelines for expropriation procedure for public use.