Controle jurisdicional dos atos administrativos discricionários.

Abstract

The State, of its sprouting until the present time, passed for diverse phases. When of the sprouting of the Rule of law, two postulates had gained importance: the separation of powers and the observance of the legality. The first one imposes that each power plays its functions without intervening with the ones of excessively. However, such rule suffers exception in view of that the Constitution of the Federative Republic of Brazil foresaw forms of external control enters to be able them of the State, from form that the present work had for object of study one of these forms of control: the jurisdictional control of the discretional administrative acts, subject studied in the scope of the control carried through for the Judiciary one on the Public Administration. It has that to stand out itself, still, that the other postulate of the Rule of law, the legality, started to demand of the Public Administration restricted observance what was made use in similar law to prevent injury to the basic rights of the individuals, as well as the concretion of the consigned public interest in law. In this context, the present work i f considered to investigate the possibility or not of jurisdictional control of the discretional administrative acts. For its accomplishment, the comparative for having was used i f collated method, throughout the work, predominantly, two divergent chains concerning the subject. With such study the clarification of the question was objectified, as well as the indication of the doctrinal positioning that better is take fancied to the Brazilian legal system. In regards to divergence on the subject, part of the doctrine understands that the Judiciary one cannot appreciate the discretional elements of the administrative act because it would be invading privative field of performance of the Public Administration, which is, the administrative merit. One would be wounding the principle of the separation of being able them. Another part of the doctrine understands that, in view of not being possible to exclude from the jurisdictional appreciation injury or threat of injury the right and being aimed at the achievement of the public interest, is possible yes the related control. Analyzing such chains, that possess other arguments enumerated in the development, it was concluded that the Judiciary one must appreciate the discretional acts to verify its legality, as well as its compatibility with the principles constitutional, not being able, however, to invade the administrative merit. In such a way, verifying the Judiciary one that the act is legal and that the principles constitutional had been observed, it will not be able to invalidate the act for understanding that another solution would be more convenient and opportune. But, i f it perceives that the act infringed the law or relegated constitutional principle, must invalidate it not being able, however, indicate act to substitute it. Such conclusion clarifies the divergence mentioned above and offers Judiciary a safe line of direction to be adopted.