Controle do poder judiciário sobre os atos discricionários.

Abstract

The present study analyses, so meticulous, the possibilities of judicial control in front of the failures of the Legislative and Executive Powers in regard to the realization of social rights. In this context, the focus of this study is proposed to investigate the possibility or not of judicial control of administrative discretional acts. For its achievement, it was used the exegetic and comparative method for having been confronted over the essay, predominantly, two currents on the subject. With such study was aimed at the clarification of the issue and an indication of the doctrinal position that best shape to Brazilian law. Regarding the disagreement over the issue, the doctrine believes that the judiciary cannot assess the elements of discretionary administrative act because this action would be invading private field of public administration, which is the administrative merit. It would injure the principle of separation of powers. Another part of the doctrine believes that in order to not be able to exclude from consideration court any injury or threat of injury to law and achieving the public interest, this kind of control is possible. Analyzing these currents, which have other arguments in the development, it appears that the Judiciary should consider the discretionary acts to verify its legality and its compatibility with constitutional principles and could not, however, invade the administrative merit. In this research, the first part presents general notions about the power and administrative acts of their use on that and use, their abuse, there is a second part to assess the control exercised by the Administration, the Legislative and the Judiciary, finally the third part deals with the possibility of control exercised by the judiciary in the face of acts of omissions or failures, in particular the discretionary ones, in the fundamental social rights, by government and the Legislative.