O direito à boa administração com a Lei nº 14.230/2021: efeitos da introdução do dolo específico na definição da improbidade e seu enfrentamento

Abstract

The concern with corruption in the Public Administration is a legacy which goes back to the first national Constitutions and found in the fight against administrative improbity, through the Code of 1988 and Law nº 8.429/92, strong and effective mechanisms to quell acts of public agents who deviate from the constitutional principles enclosing what should be a good administration in the Rule of Law. In 2021, Law nº. 14.230 substantially modified the system of improbity, bringing, among several points, a new legal definition to acts of improbity, making it essential in its practice specific malice, whose demonstration would be indispensable in the course of the civil actions of improbity with legal standing to sue only for the Public Prosecutor’s Office. In this context, this paper’s objective was to analyze how this new requirement, combined with other changes brought in the aforementioned law, affect and might affect the effectiveness of the system of improbity, paying attention to the realization of the right to good administration which is aimed at combating corruption. To achieve this, a bibliographical, documentary and jurisprudential research was carried out, using manuals and essays on Administrative and Criminal Law, doctoral theses, master's dissertations, bachelor's degree conclusion works, academic articles from specialized journals and electronic sites of notorious academic recognition, as well as decisions of Superior Courts and first-degree magistrates of the Ceará’s Court of Justice in the period from January to March 2022. It was found that the new definition of the act of improbity, which now requires demonstration of the agent’s free will and volition to seek a determined illicit result, established the act of improbity as necessarily a manifestation of the public agent’s bad-faith and dishonesty. The scope of the improbity action was strongly narrowed down, without, however, balancing this important change with the several more which came with Law nº 14.230/2021 resulting in significant decrease in the possibilities of using the corresponding procedural instrument in specific cases. Thus, the repression of improbity’s contribution to the good Administration’s building is currently diminished considering the severe limitations of the system of improbity in 2021, which will demand, in the following years, a cautious look coming from the doctrine and jurisprudence on the institute of administrative improbity and laws on it in order to make all the legal system in force compatible with constituent’s will when they ordered the fight against corruption as a necessity for Public Administration’s maintenance.