O poder de polícia à luz do princípio da proporcionalidade: análise do instituto no contexto atual

Abstract

The purpose of the present monograph is to analyze the origin and the traditional concept of police power, as well as its characteristics and means of action, in order to, from its premises, | ompare its perfomance with the current context, in light of the factual and juridica] changes happened in society. In this sense, under the influence of post-positivism, it is proposed a Ú reconstruction of the concept of police power, to ensure not only the public interest, but also ¡ the individual one, based on the defense of fundamental rights protected by the Federal Constitution of 1988. To this end, limits that police power must respect are established, so that its operation is not arbitrary or unreasonable, among them, the most important, the principle of proportionality. In this line, it is argued that the interpreter should weigh between the conflicting interests through the application of elements of adequacy, necessity and proportionality on strict sense in the concrete case, to obtain the more harmonic solution, i avoiding that in the defense of a supposed general supremacy, the individual rights gets overly restricted. Through a deductive methodology, with qualitative, bibliographic and case analyze, the traditional concept of the institute is rebuilt in the context of the Democratic State of Law.