Anulação, revogação e convalidação: a proporcionalidade como instrumento para a prossecução do melhor interesse público no exercício da autotutela administrativa

Abstract

This paper considers the treatment given until now to the exercise of administrative selftutorship by the Brazilian administrative doctrine, identifying that the institutes of annulment, revocation, and convalidation represent ways of realizing the traditionally understood constitutional principles of legal security, legality, and the supremacy of the public interest. By examining these institutes from the standpoint of the so-called "XXI century Administrative Law," the result of a process of constitutionalization of this branch of the Law, one can see the overcoming of the ideas of strict legality and the supremacy of the public interest, with the adoption of Juridicity and the pursuit of the public interest. In this new context, the insufficiency of the treatment traditionally given by the administrative doctrine to administrative selftutorship emerges, through the attempt to establish pre-fixed theoretical judgments, which is further evidenced by the changes promoted by Law No. 13,655/2018 in LINDB (Decree-Law No. 4,657/1942), as well as by articles 147 and 148 of Law No. 14,133/2021. It points out, then, the principle of proportionality as a weighting instrument to be used in the exercise of administrative self-tutorship to identify the measure that favors the best public interest to be realized in the concrete case.