Acordos substitutivos de atividade sancionatória unilateral em contratos da administração pública

Abstract

The research is developed from the critical analysis of the administrative legal regime based on the unilateral administrative act, and argues that this model is being overcome, and the consensual role of the Public Administration should prevail in the State of Social and Democratic Law. In this context, the main object of the research is to analyze the hypotheses in which it is possible to replace a unilateral sanction resulting from contractual infractions by the administrative agrément, as well as the decision-making process of the administration to choose between the agreement or the unilateral sanctioning act. Therefore, an analysis of administrative contracts in Brazil and the replacement of the unilateral administrative act by bilaterality is carried out. It also investigates the nature of administrative sanctions, their purpose and the principles applicable to them, as well as the discretionary and related aspects of the sanctioning administrative act. After defining these assumptions, the existence of authorization under Brazilian law for the replacement of unilateral sanctioning activity within the scope of administrative contracts by agreements will be analyzed, as well as the nature and legal regime of the decision that opts for the agreement or sanction unilateral. Next, the guiding criteria that must be used by the Administration to decide between entering into the agreement or applying a unilateral administrative sanction in the event of contractual administrative infractions will be analyzed. At the end, it will be investigated the degree of binding of these guiding criteria of the decision in the concrete case and the possibility of control by the Judiciary, as well as the existence of the private subjective public right to the agreement.