Polo passivo na ação de improbidade administrativa: agentes públicos em sentido estrito, agentes públicos por equiparação e particulares à luz da jurisprudência do Superior Tribunal de Justiça

Abstract

The growing need for an effective fight against corruption in Brazil culminated in the development, over decades, of the notion about the act of administrative misconduct/administrative improbity, a type of illicit act characterized, essentially, by the violation of the dictates of morality, fairness and honesty in the administrative sphere. The objective of this monograph is to analyze each one of the possible respondents of an administrative improbity action in light of the thematic jurisprudence of the Superior Court of Justice. In particular, it intends to focus on the legal classification given to individuals or legal entities that voluntarily receive public funds for application in public purposes, identifying, based on this classification, the viability of their isolated submission to an administrative improbity action. It is analyzed, through the positive legislation, the specialized doctrine and the thematic jurisprudence, which are the necessary requirements for the identification of public agents and private individuals in the area of administrative misconduct/administrative improbity, always in the light of Constitutional Law. The results obtained with the research, focused on public agents by equivalence, indicate that any person who, by means of any type of formal administrative adjustment (agreement, transfer contract, management contract, term of partnership, term of cooperation etc) celebrated with the Public Administration, receives possession of resources of public origin, thus assuming the obligations of its management and regular destination (public function), is considered, for purposes of accountability for administrative misconduct/administrative improbity (federal law number 8.429/1992), a public agent, more precisely a public agent by equivalence, being the first, and not the third party. The consequence of this quality is that it is fully possible for public agents by equivalence to be held separately responsible, on an equal footing with public agents strictly speaking, in a possible administrative misconduct action (administrative improbity action), having no violation of the Superior Court of Justice’s jurisprudential understanding that requires, for private individuals/third parties, the concomitant presence of a public agent (strictly speaking or by equivalence) in the respondent side.