The subjective element of the acts of administrative misconduct: The in(applicability) of negligence and willful misconduct

Abstract

The ruling principles of Public Administration in the Constitution of the FederativeRepublic of Brazil have, among the protective measures for its implementation, the constitutional command of punishing acts of administrative misconduct, according to Law nº 8.429/1992. However, certain elements regarding the discipline have occasioned some controversy in doctrine and jurisprudence, like the subjective element necessary to its setting, if by fault and/ or a willful misconduct. In this regard, in order to define such a premise, this study lies on the understanding of the concept of administrative misconduct under conceptions rooted in the Constitution, in order to extract what kinds of practices prejudicial to public administration had the legislators towards the punishment, from the distinctive notion of the concepts of legality, morality and probity. Next, the procedures for acts of administrative misconduct, as set out in articles 9th, 10 and 11 of Law nº 8.429/1992, are appraised, thus allowing to understand the extent of the subject. Finally, leaning to the nodal point of discussion, in the light of the previously outlined assumptions, the examination of the subjective elements acceptable to the configuration of administrative misconduct are examined.