ACTION OF REIMBURSEMENT TO THE ERATION FOR ATO DOLOSO OF IMPROBITY AND THE CONDITIONING OF THE PRESCRIPTION TO AGENT SUBJECTIVITY

Abstract

The present study analyzes the understanding adopted by the Brazilian Federal Supreme Court in judging that there is no limitation period for filling a case of compensation of damages to the treasury in situations of administrative dishonesty, based on the interpretation of art. 37, § 5º, of the Federal Constitution. At first, a doctrinal analysis is made about the understanding of the clause, opposing the decision of the Supreme Court to basic principles of the Democratic Rule of Law, as well as the notion that the rule of the legal system is the statute of limitations, while imprescriptibility is an exception and must be foreseen expressly and exhaustively. Subsequently, it is presented that the imprescriptibility, materially, ends up being a sanction to the one who committed the act of improbity. In the final part of the article, after exposing the prescription as an institute for the certainty of legal relations, the study concludes that the STF's decision regarding the matter is wrong, especially when it denatures the prescription, which is no longer harmful to the analysis of the merit and becomes conditioned to it – which causes an affront to the fundamental right to ample defense.