Name: JAMILE AMIM AMARAL LEAL
Publication date: 15/12/2020
Advisor:
Name |
Role |
|---|---|
| FRANCISCO VIEIRA LIMA NETO | Advisor * |
Examining board:
| Name |
Role |
|---|---|
| FRANCISCO VIEIRA LIMA NETO | Advisor * |
| GILBERTO FACHETTI SILVESTRE | Internal Examiner * |
Summary: The purpose of this dissertation was to examine the civil procedural liability of the State, when defeated in the action of administrative improbity, in the light of the full reparation of the abnormal and unfair damages borne by the public agent. It was hypothesized that the defendant who won the lawsuit would be entitled to full compensation for the damages sustained as a result of the lawsuit. The research methodology consisted of an exploratory bibliographic survey of publications that portray the subject in question, the pertinent legislation and doctrines and the precedents of the Superior Court of Justice on the proposed theme. The deductive approach method was used, with the purpose of proving or not the hypothesis rose, starting from a general premise in the first chapters to particularize the work in the last chapters, and thus reach a conclusion on the proposed problem. It was initially postulated by the removal of the unlawfulness of the act for imputation of responsibility, which shifted the focus from the unlawfulness to the injustice of the harmful result. It was admitted that the principle of full reparation aims at the full compensation of the victim, in order to restore the social balance broken by the unjust damage, seeking to restore the injured person to the situation prior to the damage, since the process does not cause damage to the party that did not give cause to the action, even if the losing party acts in the regular exercise of the right. It is in this context that the victim's interest in compensation for abnormal and unfair damage sustained due to the process prevails. It can be seen that the Administrative Improbity Law, since it encompasses open legal classification of acts of improbity, allows the public agent to be involved in the action for several years, for any irregularity, almost always proposed with a request for the unavailability of assets, even if the conduct is practiced without bad faith. It was also investigated about the abuse of the right in filing an unfounded action for administrative improbity, which although related to an apparently legality, exceeds the limits of objective good faith, being considered an atypical illicit. It was also sought to clarify about the legal bases regarding the reimbursement of contractual fees for the attorney's performance in the judicial sphere. It is concluded that the legislation leaves no doubt as to the civil procedural liability of the defeated State in the action of administrative improbity for the payment of procedural expenses lato sensu, of the succumbent fees, of the compensation for the moral damages, including for the damages caused to the winning defendant resulting from the abuse the right to sue, as well as the damages resulting from the implementation of the precautionary measure of unavailability of assets, in order to contribute to a more balanced
social environment, the burden of which falls on the Public Treasury to which the Public Ministry is bound. The precedents on the reimbursement of contractual fees paid by the winner of the lawsuit for his representation in court have been quite controversial until the year 2015: sometimes addressing the issue with a focus on full reparation, sometimes based on the illegality of the act, even if the illegality of the act is irrelevant to the imputation of the State's strict liability. From the year 2016 to 2020 the judges have been against the reimbursement (Appendix 9), and after 2018 they did not consider the rule imposed in article 27 of LINDB/1942, inserted by Law 13.655/2018. Then, a Bill was presented (Appendix 10) for the inclusion of the third paragraph in article 27 of LINDB/1942, with the following content: In state actions, the contractual attorney fees paid by the winner of the proposed action in the regular exercise of the law constitute abnormal and unfair damages and integrate losses and damages.
