Do ônus condenatório ao rigor probatório na NLIA: investigações sobre a (in)viabilidade de ruptura da teoria subjetiva na improbidade administrativa

Abstract

This article revisits the institute of administrative improbity, investigating how the recent legislative change increases the burden of proof to prove specific intent in the classification of conduct, making it even more difficult to attribute the responsibility required for sentencing purposes in the competent action. The study inquires to what extent the innovations of Law No. 14,230/2021 oversize the applicability of the subjective theory, impacting the purpose of combating corruption practiced by public agents. As a hypothesis, it is based on the premise that the new legislation, by reshaping the culpability and atypicality of improbable acts, in a comprehensive list, generated bottlenecks in the punitive purpose intended by the Administrative Improbity Action, opening views to the possible viability of using the theory objective in order to safeguard its purposes. In this sense, the methodology adopted is based on bibliographical studies, of a legal-exploratory nature, and field research, in particular on the quantitative analysis of the impacts perceived by the jurisprudence of the Federal Regional Court of the 6th Region, through empirical research.