Controle jurisdicional do ato administrativo e o princípio da proporcionalidade

Abstract

The Administrative discretion consists in one of the most relevants institutes of Public Law. It is through this freedom conferred by the law that the public agents can dictate the direction of the Public Administration. It happens that the traditional dogma of the intangibility of the administrative merit by the judiciary power, in modern times, should no longer prevail. Also no longer can be accepted the idea that the magistrate can by himlself perform an examination of the legality of the administration discretionary acts. In this path, raises the need for control by the judiciary of the adequacy of the administrative acts to the law system as a whole, particularly towards the existing constitutional requirements. In this scenario, outweighs the principle of proportionality as an instrument of control of administrative acts, mainly the discretionary ones. This principle becomes of great importance for the judges to be able to expunge any and all unlawful administrative act, no matter if it's bound or not. However this control it's not absolute, deserving special caution in the application of the principle of proportionality for this purpose, aiming to avoid excesses by the judiciary which result in a violation of the equal separation of powers.