Uma releitura da improbidade administrativa sob a Ótica Alexyana em busca de parâmetros legítimos no processo de interpretação da contratação temporária irregular de servidores públicos enquanto ato ímprobo

Abstract

Under the post-positivist paradigm, materialized through the alexyana scientific production, we seek to elucidate the appropriate parameters for the legitimate design of acts of administrative misconduct that undermine the principles of public administration, with special focus on the analysis of irregular temporary hiring of civil servants as unruly conduct. Under the aegis of post-positivism, motivation is an essential element for the legitimation of any state act. In this scenario, the thought of Alexy, chosen to serve as a theoretical reference for developed research, is endowed with special emphasis, as it is anchored in a rationality grounded and in absolute harmony with the national legal system. Thus, through a markedly theoretical and eminently bibliographical research, forged under a deductive approach method, it is noted that the legitimacy of dimensioning acts of administrative misconduct against the principles of public administration presupposes the adoption of rational, objective and consistent parameters. However, an empirical research, based on the analysis of precedents from the Minas Gerais Court of Justice regarding the framing of irregular temporary hiring of civil servants as a misconduct, reveals the usual delivery of unsuspected decisions of objective control. Under an inductive approach, it is presumed that there is an absolute lack of uniformity in the treatment regularly given to the matter, at least by the case-law of Minas Gerais. Given this framework, through a frankly purposive scope, the development of true hermeneutic sanitation is sought. The technique of positivation carried out by the national legislature in governing the problem under analysis is undoubtedly vague. In fact, the hermeneutic person has to do with the herculean task of granting effectiveness to the current legislation, detached from subjectivism. However, the scarcity and superficiality of most doctrinal studies on the subject is evident. Thus, the scientific relevance of this research is based on the need to confront this state of legal apathy imposed on the problem under study, whose social impact is harmful, given the risk of arbitrariness and decisionism. In view of this, the aim is to elaborate a systematic proposal of parameters aimed at recognizing an act of administrative malpractice against the principles of public administration in cases of irregular temporary hiring of public servants; without prejudice to the subsequent replication of the logic conceived in other universes of analysis encompassed by the field of administrative improbity. In short, anchored in the idea of the institutionalization of reason, the aim is to improve the criteria used for the recognition of wrongdoing, aiming at the construction of objective and rational parameters, in favor of legal certainty and fairness.