The Prescritibilidade of the actions of the Treasury

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MURARO, Igor Santos [1]

MURARO, Igor. The prescritibilidade of the actions of the Treasury. Multidisciplinary Core Scientific knowledge magazine, year 1, vol. 7, p. 63-76. August 2016. ISSN:0959-2448

Summary

Article 37, paragraph 5, of the Constitution of the Republic, while contemplating the caveat about the existence or not of limitation period for the Public to appraise the relevant stock Farms of claims arising from damage, always ended up split both the doctrine as the jurisprudence with respect to the existence or not of this time-limit for the exercise of the right of action. The present work intends to demonstrate that any interpretation of the device in comment leading to the conclusion by the West or of the shares of claims, would be inconsistent with the legal system as a whole, as the current case law of the Federal Supreme Court on the subject.

KeyWords: Administrative Law. Compensation to the Exchequer. Prescription. Legal Certainty.

Introduction

Article 37, paragraph 5, of the Constitution of the Republic always shared both the doctrine as the case-law, especially with regard to the exception contemplated in this regard to the device supposedly West or the actions of compensation to the Treasury to be proposed by the respective Public Farms.

Indeed, the Supreme Court, to review the sobredito theme, reformed the understanding that had been formerly signed on the imprescriptibility of this claim.

In view of this, we intend to, through this work, showing what the proper interpretation of that should be hermeneuta, by adopts proviso contained in the said constitutional device, especially in the light of the principle of legal certainty.

1. Principle of legal certainty

Before we look more specifically on the topic regarding the existence or not of statute of limitations for filing damage repair action to the Exchequer arising out of tort, it is essential to keep us busy, although without depleting the theme, on the principle of legal certainty, which is the very essence of own right, notably of a democratic State of law (MELLO , 2014, p. 126).

Indeed, the stability of legal relations is a fundamental value of any State that has a claim to deserve the title of rule of law, in such a luck that, at least since the Declaration of human rights of 1948 the right to safety went on to appear in the main international documents and in significant number in modern Constitutions (SARLTE , 2002, p. 53-54). Indeed, that "The Democratic theories about the origins and justification of the State contract based, are based on a commutative clause: receives safe what if grants in freedom" (BARROSO, 2003, p. 52-53).

Well, don't hesitate to propose the cause determines stability in social relations, seeking to assign a minimum of certainty in conducting of social life. And that to have a predictability of human conduct, and here also include State-owned pipelines. Is to say, we have the legal order corresponds to a proposed legal framework precisely aimed to guide people, which, knowing what they should or can do, given the further consequences attributable to its own actions.

And this predictability that the legal system eventually leads to condition human action, causing, Celso Antônio Bandeira Magisterium as de Mello, numerous relationships are with a view to certain results, not only immediate, but also mediate arising therefrom, preventing the parties suffer any sudden jolt that go against the stability of situations. Here's what, didactically points out sobredito author (MELLO, 2014, p. 127):

The proe Law itself to lead to some stability, a certainty in the Regency of social life. Hence the so-called principle of "legal certainty", which as well for this, if not the most important one of all the General principles of law, is, indisputably, one of the most important among them. The prescription salons, of decadence, of estoppel (in the procedural sphere), adverse possession, the irretroatividade of the law, of the right acquired, are concrete expressions well reveal this deep aspiration to stability, security, given the right. All the more so because many among relations composed by subjects of law represent a view of the future and not just the immediacy of situations, such as a salary requirement inafastável social conviviality, free from sudden jolts or surprises confusing, there is a certain stability in situations thus established

Soon, we can glimpse the principle of legal certainty under a dual perspective. Which are: certainty and stability. This owns legal institutes aimed at conservation of the subjective rights and expectations of law that individuals place in the State, while the first returns to the safe knowledge of legal standards, essential for the predictability needed for man can design your life, as Rafael Valim Magisterium on the topic (VALIM, 2010, p. 46).

It is common to divide the principle of legal certainty in two respects, however, too often, don't take, therefore, such a distinction. Second in the standings that exposes with greater clarity and comprehensiveness this principle takes into account both conceptual nuclei for him bundled up, namely: the certainty and stability

Have no doubt, therefore, about the importance of seguraná, granting legal predictability to human conduct. And, while we're on relationships involving Public Administration as one of the parties, we find that this principle becomes even more expensive in these relationships. Indeed, that despite him not being able to be rooted in any particular constitutional device, is explicitly contemplated in infraconstitutional legislation governing administrative activity, more specifically on art. 2 of federal law 9,784/19[2]99, which regulates administrative procedure under fed.

It happens that the right has only claim to regulate and conditioning ducts and human relationships, not possessing the ability to effectively implement them or prevent them are not complied with in the world of facts. Is to say, flying through the world of duty, does not stoop to pragmatism of human relationships to specifically inhibit that pipelines are carried out contrary to the prescribed by the.

Given that, in the event of non-compliance with a standard, the legal order establishes a set of consequences. And this so that, even in the face of acts incompatible with the normatively prescribed yet, we will know in advance what the result of that noncompliance, ensuring that the subject of the relationship have security about the unfolding of this situation.

And one of the figures that the law contemplates, to solve the problem of legal security as a way of ensuring the stability we have mentioned previously the caducabilidade.

Although we recognize that the issue requires further consideration, for the purposes of this work just in the conceptualization of Eduardo Arruda Alvim (2012, p. 358-359), in the sense that the decline is the loss of the right itself, due to the passage of time, whereas prescription means the extinction of the claim, even if such does not lead to loss of the right for her ward. Is to say, when there is a loss of own right itself, substantive law, we have the figure of decadence and, on the other hand, in the case of estoppel, the possibility of exercising, of action, which protects the mentioned law, we are on the prescription.

Given this, we have the prescription as a component of the principle of legal certainty, behold, one of the ways to ensure the security and stability of social relations operates precisely through the fixation of time lapse for the exercise of a particular claim. It is entitled an airtight system, therefore, to safeguard this against events that occurred in the past, the law allows the stabilization of relations by the passage of time, rallying.

In spite of the limitation period be rule in our ranking, only two chances the Constitution understood that the perpetuation of a conflict was more beneficial to the legal order that its interruption by prescription.

Indeed, as indicates the art. 5, XLIII and XLIV, respectively, "the practice of racism constitutes bailable crime, indefeasible, subject to penalty of imprisonment, in accordance with law" and "bailable and imprescriptible crime constitutes the action of armed groups, civilian or military, against the constitutional order and the democratic State".

It happens that, in spite of legislation only contemplate barred expressly in these two situations, to come across as provided for in art. 37, § 5, of the Constitution of the Republic, the doctrine and the Supreme Court itself differ in proper interpretation of this device, how to prescritibilidade or not the actions of compensation to the Exchequer.

2. The action of the Exchequer referred to in art. 37, § 5, Constitution of the Republic

As points out the art. 37, § 5, of the Constitution of the Republic, "the law shall establish the deadlines for illicit prescription practiced by any agent, server or not, causing prejudice to the Treasury, subject to the respective shares of compensation".

On the occasion of the trial of the injunction 26,210 the Supreme Court faced the issue of imprescriptibility provided in this constitutional device, more precisely, the term except as regards the actions of the Treasury.

Is to say, demanded that that Court could clarify if aforesaid exception provides the imprescriptibility of compensation actions for filing, or, if the Statute of limitations for both will be distinguished from that laid down for the determination of unlawful.

Indeed, the Supreme Court has assessed this issue on the following conflict: the Court of Auditors has condemned a scholar of the National Research Council (CNPq) to the return of a bag that had been given to study ants at Cambridge University, with the obligation to return to the country, upon completion of his doctorate, but he didn't.

Despite the obligation of the scholar returning to Brazil have improved in 1996, only in 2009 is that the Court of Auditors the condemned to return the values corresponding to the scholarship granted by the CNPq. Is to say, only after the passing of nearly fourteen years from the date on which she would have returned to Brazil, there was his conviction to the restitution of unduly values suitable for the scholarship.

Soon, the Supreme Court had to deal with the question of the inertia of the State in collecting a debt, after thirteen years of the date on which the lives of particular with relation to the assumed obligation, would cause the portular State prescription reimbursement of the amount not adimplida by administered, in the light of article 37, paragraph 5, of the Constitution of the Republic?

At this point, we think it relevant observations raised by former Min. Cezar Peluso, in the following terms:

This standard clearly states an exception – I would say, striking exception – in relation to the universal legal principle: the principle of limitation of the term of Office of logs the claims, why is this requirement of legal certainty. There is wide discussion in doctrine on the declaratory actions, to know whether they were or not imprescriptible, but the general rule, as universal principle, formulated for the benefit of social peace and of legal certainty, is that all claims are subject to prescription, and some rights, subject to decay. Then, with exception to a rule so wide range, would have to be interpreted, of bridge view, strictly

It happens that, by majority vote, that pointed out that would not have occurred in the event prescription. And this under the grounds that the interpretation that should be attributed to the end of article 37, paragraph 5, of the Constitution of the Republic is in the sense that only the determination and punishment of illicit does prescreverás, but, no, the right to compensation administration, compensation, injury caused to the Exchequer.

In other words, the term subject covered in this device would dispel any statute of limitations to be infraconstitutional legislation set by, so that the actions of the Treasury are imprescriptible.

Regarding the alleged occurrence of prescription, focuses, in kind, the provisions of art. 37, § 5, of the Constitution of 1988.

[…]

Considering himself to be the taking of Special Administrative Accounts that aims to identify responsible for damage caused to the Exchequer, and determine the compensation of the injury determined, understand applicable to the case under examination the final part of this constitutional device

However, on the occasion of the trial of the extraordinary appeal 669,069 the Supreme Court, once more, it focused on this theme.

This appeal was brought by the Union aimed at reforming the judgment of the Federal Court of the 1st region, which applied the Statute of limitations of five years, keeping the sentence that extinguished the action for compensation for damage to public assets, arising from a traffic accident.

Indeed, in 2008, the Union filed a lawsuit of compensation in the face of a road transport company and one of its drivers, for understanding that there was no fault of the driver of the bus in exclusive hit against a unit of the Amphibious Naval Division company, racing in October 1997. In other words, the Union filed a lawsuit of compensation after more than eleven years of the occurrence of the damage.

It happens that in this new trial, the Supreme Court, reviewing the position previously signed, confirmed the thesis of General repercussion in the sense that "prescritível is the action of repair of damage to the Exchequer arising from civil tort".

For most, the Ministers accompanied the rapporteur, Minister Da Zavascki, with the thesis proposed by Minister Luís Roberto Barroso. Indeed, as pointed out by the rapporteur, the exception contained in article 37, paragraph 5, of the Constitution of the Republic must be understood restrictively, behold, a broad interpretation of the proviso contained in this final device would lead to the West or from any and all claims brought by State action, even those founded in tort that does not derive from guilt or malice.

In fact, as proposed by the Minister Luís Roberto Barroso, and accompanied by other members of that court that denied the Union's extraordinary appeal dismissed, the theme of the West or limited to actions of compensation arising from civil tort, not encompassed those arising from misconduct or unlawful administrative penalties.

Here are the following excerpts from the judgment of the Supreme Court, on the occasion of the extraordinary feature in comment:

On merit, are concerned legal controversy regarding the meaning and scope of the final part of the art. 37, § 5, of the Constitution, which reads as follows:

[…]

This final regulatory text caveat gave room for installation of a dogmatic impasse. One of the lines of understanding is that suggested by feature, which, founded on literal interpretation, assigns to the constitutional caveat to make perpetual consequence any compensation action moved for the money, since the damage claimed results from any unlawful, regardless of the nature of this unlawfulness. Occurs, however, illicit, in a broad sense, is "everything that the law does not allow this to happen, or is practiced against the right, justice, morality, social morality or public order and susceptible to sanction" (NUNES, Pedro. Legal Technology dictionary, 12th ed., Livraria Freitas Bastos, p. 478). For configuration of the illicit, in this broad sense, "what is required in addition to all of the Act (and sometimes guilt), is the predicament the law", explains Pontes de Miranda (Treaty of private law, Tomo II, SP: RT, 1974, p. 207). Now, if I were in this wide sense the illicit concept announced in paragraph 5 of art. 37 of the CF, would be under the protection of the West or any ressarcitória action moved for the money, even the founded in tort arising out of fraud or even guilt. Tax enforcement itself would be imprescriptible, behold not satisfaction of taxes or other taxes, ancillary, principal or certainly represents a behavior contrary to the law (unlawful, therefore) and causing damage. This vision so estremada certainly not shown consistent with a systematic interpretation of the constitutional planning. Even the specific legal domain of art. 37 of the Constitution, which deals with the principles of public administration, leading to a more restricted interpretation.

[…]

In short, there is no doubt that the final fragment of § 5 of art. 37 of the Constitution conveys, in the form of the West or, a lock order intended to contain any legislative initiatives displicentes with the public assets. This sense must be preserved. However, it is not appropriate to embed in the West or a standard range unlimited, or limited only by (a) the material content claim to be exercised – compensation – or (b) for the cause that gave rise to embezzlement in the Treasury-a tort in a broad sense. What shows more in keeping with the system of law, including the Constitution, which consecrates the principle prescritibilidade, is to assign a strict sense to the illicit contemplated in paragraph 5 of art. 37 of the Federal Constitution, stating as thesis of General repercussion that barred referred to the mentioned device concerns only the actions of compensation of damage resulting from unlawful typed as administrative misconduct and unlawful penal as.

In view of the reasons that we on the subject, we note that the current positioning established by the Supreme Court, regarding the interpretation of the exception contained in article 37, paragraph 5, of the Constitution of the Republic is in line with the Brazilian legal system.

Indeed, being the Office of prescription one of the facets of the principle of legal certainty, any exception to the prescritibilidade of any entitlement shall be expressly in the constitutional text. And that under penalty of affront to the principle of legal certainty which, we repeat, true essence of own right.

Hence why, when faced with devices that provide room for doubt as to the prescritibilidade of a particular claim, such as occurs with article 37, paragraph 5, of the Constitution of the Republic, the hermeneuta must interpret it in the light of the principle of legal certainty by refusing any claim directed against the prescritibilidade of the State claim.

In view of this, we have that the proviso contained in paragraph 5 of article 37 of the Constitution of the Republic does not contemplate the barred State claim to compensation of damage caused to the Exchequer. Unlike the mentioned caveat concerns the distinction that should exist between the limitation period to sanction the breach which causes damages to the Exchequer of the infraction that has the scope to get the money for the damage it causes, that is, does not apply the these two penalties the same statute of limitation.

However, this same article 37, paragraph 5, of the Constitution of the Republic states that the damage to the Exchequer wrongdoing will have period of limitation laid down in law, without, however, determine which which will cause damage to the illicit money that is encompassed by this constitutional device. Is to say, the injury to the Exchequer can arise from a civil, criminal, illicit or even administrative, tax.

Soon, that same exception should be interpreted in the sense that, among the many violations that may result in damage to the Exchequer, the law shall identify which of these offences are liable to compensation. We emphasize, moreover, that on the occasion of the trial of the extraordinary appeal 669,069, the Supreme Court clarified that that opportunity was just about compensation to the Exchequer arising from civil tort.

Indeed, as clarified by Minister Dias Toffoli, "there is in the background theme discussion regarding administrative misconduct or even criminal that involve unlawful damage to the Treasury or other chance of achieving State Heritage in its various forms".

Conclusion

Made the above considerations show that the prescription is a component of the principle of legal certainty, behold, one of the ways to ensure the security and stability of social relations operates precisely through the fixation of time lapse for the exercise of a particular claim.

Given this, for being barred an exception in our legal system (only recommended in art. 5, XLIII and XLIV of the Constitution of the Republic), any interpretation of a legal device, be it infra-constitutional or, that it matters in the West or of a particular claim, must be interpreted cum grano salis.

And that as a way to prevent the recognition of any incaducabilidade resulting in the break-up with the Brazilian legal system, in order to be the principle of legal certainty real essence of own right.

Is to say, to come across with devices that provide room for doubt as to the prescritibilidade of a particular claim, such as occurs with article 37, paragraph 5, of the Constitution of the Republic, the hermeneuta must interpret it in the light of the principle of legal certainty, refuting any claim directed against the West or the State claim.

Hence why, we share the position adopted by the Min. Da Zavascki, on the occasion of the trial of the extraordinary appeal 669,069, in the sense that it is more in line with our legal system, embodying the principle prescritibilidade, assign a strict sense to what is unlawful art. 37 of the Federal Constitution, stating as thesis of General repercussion that barred referred to the mentioned device concerns only the actions of compensation of damage resulting from unlawful typed as administrative misconduct and unlawful penal as.

Finally, we emphasize that, once more, the Supreme Court if address on the subject of stock prescritiblidade of claims to the money. In fact, this time, on the occasion of the recognition of the existence of General repercussion in the extraordinary appeal 852,475, the Supreme Court will deal with the actions of prescription reimbursement to the Treasury by public agents as a result of Act of administrative misconduct.

On that occasion, the discussion will be around the celeuna on the application of the Statute of limitations of five years from the knowledge of the fact, as referred to in art. federal law 23/1992 8,429, or, differently, if the understanding already reached on the proper interpretation of article 37, paragraph 5, of the Constitution of the Republic.

In our view, even with respect to extraordinary Resource 852,475, which will take the theme of prescritibilidade of compensation to the Exchequer to the plenary of the Supreme Court, the legal caution the topic deserves the same presented in this work and other by that same court, during the trial of the extraordinary appeal 669,069.

That is, to come across devices, constitutional or infra-constitutional, that provide room for doubt as to the prescritibilidade of a particular claim, the hermeneuta must interpret it in the light of the principle of legal certainty, refuting any claim directed against the West or the State claim.

REFERENCES

ADEBAYO, Eduardo Arruda. Civil Procedural Law. São Paulo: Revista dos tribunals, 4th ed., 2012.

BANDEIRA DE MELLO, Celso Antônio. Administrative law course. São Paulo: Malheiro, 31st ed., 2014.

BARROSO, Luís Roberto. "The legal security in the era of speed and pragmatism" In. Quarterly Journal of public law, vol. 43. São Paulo: Malheiros, 2003.

SARLTE, Ingo Wolfgang. "The effectiveness of the fundamental right to legal security: human dignity, fundamental rights and prohibition on backsliding in Brazilian constitutional law" In. Quarterly Journal of public law, vol. 39. São Paulo: Malheiros, 2002.

VALIM, Rafael. The principle of legal certainty in the Brazilian administrative law. São Paulo: Malheiros, 2010.

[1] Master in law from Pontifícia Universidade Católica de São Paulo-PUC/SP.  Email: [email protected]

[2] "The Government will abide by, among others, the principles of legality, purpose, motivation, reasonableness, proportionality, morality, ample defense, contradictory, public interest legal certainty and efficiency".

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