Os contornos jurídicos da tredestinação ilícita analisados à luz do direito de retrocessão e os seus desdobramentos

Abstract

Illicit tredestination is a recurring practice in Brazil, and its in-depth study, as well as its legal developments, are indispensable in order to understand them better and make it possible for administrative activity to be conditioned to strict compliance with the duty to which it is subject. proposes, that is, the service to the interest of the collectivity. The present work of conclusion of course has exactly this approach, since it examines, at the outset, the right of property, fundamental guarantee listed in the Federal Constitution, whose sacrifice is only allowed by virtue of the supremacy of the public interest over the private, also addressed in the text. Next, it concerns the expropriation, an administrative act arising from the intention to effect the primacy of social desires, due to the verification of the public need or utility or, also, of the manifest social interest. Following this line of reasoning, the destiny conferred on the expropriated property must be the constant in the expropriatory decree, or at least one supported in the collective will, otherwise it will be faced with a deviation of purpose sufficient to lead to annulment of the administrative practice that, in the specific context of expropriation, is denominated illicit tredestination, main point of the work. In this vein, the examination of retrocession is highlighted, since this institute has long been debated among jurists, especially as regards its legal nature, in which part of them it is understood as a personal right, a part, a feature real and the remainder, of a mixed nature, which directly influences the legal satisfaction due to the aforementioned deviation. Finally, in order to demonstrate the concreteness and relevance of the study proposed by this work, several judicial decisions were corroborated with the understanding found throughout the text. In order to do so, the method used was the bibliographical method, through which it was possible to extract from documents already published, through an indirect technique of obtaining data, the various understandings established and critical in relation to the subject under consideration, thus enabling the clash between them in order to solidify a verisimilious conclusion.