A RETROATIVIDADE DA NORMA MAIS BENÉFICA NO REGIME DE IMPROBIDADE ADMINISTRATIVA: UMA ANÁLISE COMPARATIVA ENTRE O TEMA 1.199/STF E O POSICIONAMENTO DA DOUTRINA E JURISPRUDÊNCIA

Abstract

The Law n. 14.230/21 introduced important changes to the administrative improbity regime, among which the requirement of specific intention and the institution of intercurrent prescription stand out. The fact that the probity protection system belongs to the so-called sanctioning administrative law, which, in turn, has a strong relationship with criminal law, raised the debate about the incidence of the principle of retroactivity of the most beneficial rule to retroact these innovations to the accused. The debate reached the Supreme Federal Court, which established the thesis in Theme 1999 of the general repercussion due to the non-retroactivity of the revocation of the negligent modality and the new prescriptive regime. The general objective of this work is to analyze the grounds used in the winning vote of the Rapporteur Minister Alexandre de Moraes in order to ascertain its (in)congruence with the doctrinal and jurisprudential position expressed on the theme. The discussion of the issues of administrative improbity, administrative sanctioning law and the principle of retroactivity in bonam partem reveals that most theorists on the subject were in favor of the application of this principle within the scope of the sanctioning administrative law. Likewise, brazilian case law decided on the retroactive application of the beneficial changes introduced by Law n.14.230/21. The background to the justification of this position is the appreciation of the approximation between administrative sanctioning law and criminal law, with the consequent transposition of the principles that convey guarantees to the accused. In the theorizing of the relationship between these legal branches, however, there was already a current pragmatic that opposed the unrestricted import of the foundations of the criminal field for the sanctioning of administrative law, proclaiming the need to construct, interpret and apply administrative sanctioning law based on its own purposes. The Rapporteur Minister of Theme 1.199/STF, by distancing himself from the guarantor discourse of criminal law and privileging the interpretation of sanctioning administrative law as a constitutional form of strict combat against corruption, distanced himself from the majority doctrine and the jurisprudence constructed until then, approaching the pragmatic current.