A tutela do direito transindividual à probidade administrativa frente a necessidade do trânsito em julgado para a perda da função pública

Abstract

A Brazilian legislator, concerned with protecting an administrative machine and, consequently, the right of an entire collectivity and an honest administration, created federal law nº. 8,429 in 1992, aiming at a determination and accountability of public agents for the practice of improbable acts. Nevertheless said protection, adelay in the res judicata of the actions of improbity has resulted in the lack of its effectiveness, especially when considering the forecast contained in art. 20 of said device. In this sense, the present study has the purpose of analyzing the protectiongiven to the transindividual right to administrative probity by the Brazilian legal system, in the context of Dem-ocratic State of Law. In the meantime, it analyzes the fundamental character of the right to admin-istrative morality and the consequent dutyof State protection, questioning the constitutionality of the forecast contained in art. 20 of law of improbity when the requirement of a final decision for the removal of the improbable agent from the exercise of the public function. For this, a qualitative approach is used on the subject, more specifically dogmatic-jurisprudential, where it is concluded by the necessity of a teleological interpretation of the juridical order, mainly an interpretation ac-cording to a constitution to allow a loss of the public function with a decision collegiate organ of second instance.