A reforma da lei de improbidade administrativa: uma análise da separação entre o joio e o trigo à luz do princípio a probidade administrativa

Abstract

This study aims to analyze, in light of the principle of administrative probity, how the distinction between mere irregularity and administrative improbity was established throughout the reform of Law No. 8,429/1992. To this end, the first chapter examines the principle of administrative probity, addressing its relationship with the legislative function and its role within the Brazilian legal system, seeking to determine whether this principle serves as an adequate parameter for analyzing the legislative process that led to Law No. 14,230/2021, which substantially amended Law No. 8,429/1992. The second chapter investigates the causes and consequences of the confusion between mere irregularity and administrative improbity, analyzing the historical context and the drafting controversies that marked Law No. 8,429/1992 over nearly three decades of its application. At this point, the study seeks to understand, from a historical perspective and within the framework of the so-called Administrative Law of Fear, the circumstances that preceded the reform. In turn, the final chapter examines the measures adopted during the legislative process of Law No. 14,230/2021 with the aim of differentiating mere irregularity from administrative improbity, seeking to determine whether the legislative changes brought the new wording closer to or further from the content of the principle of administrative probity. To achieve these objectives, this descriptive research adopts a qualitative approach, employing bibliographic and documentary procedures. Primary and secondary sources were used, including books, dissertations, the 1988 Federal Constitution, the preliminary draft, the substitute bills, and the final wording of Law No. 14,230/2021, as well as decisions from the Superior Court of Justice (STJ) and the fourteen public hearings held between August and November 2019 on the reform of the Administrative Improbity Law. As a result, it is concluded that although the principle of administrative probity is sufficient for analyzing the material aspects of Law No. 14,230/2021, the framework of Administrative Sanctioning Law proves to be a broader and more appropriate parameter, as it also allows for the analysis of the procedural changes introduced by the reform. Despite this observation, in light of the principle of administrative probity, it is noted that the exclusion of the negligent modality, the requirement of specific intent, the clearer definition of typologies, and the establishment of objective criteria for the measurement of sanctions applicable to acts of improbity reflect the legislative effort to align the new wording with the principle of administrative probity. Finally, the research highlights the need to monitor how the Superior Court of Justice will interpret these legislative innovations, particularly regarding the requirement of specific intent.