O poder discricionário e o controle jurisdicional

Abstract

The area of discretionary performance of the Public Administration is diminished sufficiently due to adoption of the principles as parameter of control of the administrative performance, beyond the habitual submission to the legality. The administrator must act inside of the limits established by the rules of law, which, according to a modern conception, include the principles and the rules. The discretionary is basic for the balance between the public prerogatives and the individual rights. How much bigger the extension of the discretionary, more risk can affect the freedom of the citizens. The doctrine and the jurisprudence had developed innumerable legal mechanisms to limit the discretionary performance of the Administration, among then the principles of the proportionality and the reasonably, the theory of the swerve of power and the theory of the determinative reasons. The control of the discretionary administrative acts initially happened only on the character and the form of the act. These limits had evolved, so that the aims and the determinative facts of the act started to be examined.