Compromisso de ajustamento de conduta em hipóteses de improbidade administrativa: possibilidade, legitimidade e limites

Abstract

Facing the recognition of the judicial process inadequacy to, unattended, solve any dispute arising in complex relationships, especially in collective field, extra procedural techniques appear as alternative instruments. This way, the same litigations that would result in lawsuits, with all the bureaucracy and high cost involved, can be solved without the actuation of the Judicial Power. Once having collective legitimates and convergence of proposals, quicker, informal, participatory and less costly solutions will lead it to reach concrete and real effectiveness. Among the many instruments of extra procedural collective protection, there is the Commitment of Conduct Adjustment, also called Term Adjustment of Conduct (TAC), because the term which it formalizes. With the conclusion of the TAC, conducts that are against the law are appropriate to it, formalizing the intentions of both sides. The instrument has wide application, and it is an effective way for protection of collective rights. However, its use in the Administrative Improbity cases is forbidden, Article 17, § 1º, of Law n. º 8.429/92, precludes to the possibility of transaction, agreement or conciliation under Civil Action of Administrative Improbity. The legal prohibition occurs by the idea that the public equity and probity of its agents are unavailable goods, and that in cases of Administrative Misconduct, alternative means of protection would settle the collective interest in danger. Thus, the present research aims to, through monographic and deductive methods, associated with the use of documentary technique and bibliographic research, deliberate the exceptional possibility of Commitment of Conduct Adjustment on Administrative Improbity cases. It concludes that flexibility of jurisprudence and doctrinal positions that indiscriminately deny that possibility is needed. So, with eyes in each specific case, be made possible the celebration of commitment if this is the most satisfactory way and the one that better deals with the collective interest.