Legal nature of administrative misconduct and abolitio delictus in the absence of specific intent

Abstract

Context: The legal nature of administrative impropriety (improbidade administrativa) is a subject of controversy. Both the wording of the pertinent legal provisions (substantially altered by Law 14.230/2021) and the jurisprudence of the Federal Supreme Court (STF), notably in Theme 1.199 (General Repercussion), offer little clarification on this matter. They sometimes point to a civil nature, sometimes to a nature of sanctioning administrative law, which generates practical repercussions for the defendant, with an emphasis on the retroactivity (or lack thereof) of specific intent (dolo específico).

Objectives: This article had two main objectives: to elucidate the legal nature of administrative impropriety in light of the law, the STF's jurisprudence, and, especially, specialized doctrine; and to delineate the practical repercussions of understanding impropriety as a phenomenon inserted in the context of sanctioning administrative law.

Method: The research is bibliographic and jurisprudential. After elucidating what characterizes specific intent, the pertinent legal provisions are addressed, emphasizing the contradiction between them regarding the definition of the impropriety's legal nature. Subsequently, the focus shifts to the votes of the STF justices in Theme 1.199, which are also contradictory concerning the subject matter. The analysis then proceeds to specialized doctrine, which allows for the unraveling of the investigation, as well as the practical repercussions of the proposed interpretation.

Results: The results of the analysis reveal a contradiction between the legal provisions pertinent to the legal nature of impropriety, as well as in the votes of the STF justices in Theme 1.199, with a variation ranging from the understanding of the phenomenon's civil nature to the understanding of its proximity to criminal law. Consultation with specialized doctrine allowed for the construction of an interpretation that inserts impropriety into the context of sanctioning administrative law, which impacts the retroactivity of specific intent.

Conclusions: The conclusion was drawn that impropriety has the nature of sanctioning administrative law, which entails the application of the guiding principles of this branch to the phenomenon, impacting the retroactivity of specific intent, which must be maximal, limited only by the exhaustion of the sanction and by the mere topographical change of provisions.