ADMINISTRATIVE MISCONDUCT: A THEORETICAL ANALYSIS ABOUT THE CHANGE IN THE SUBJECTIVE ELEMENT AND LIMITS IN THE LIST OF ARTICLE 11 OF LAW Nº 8.429/1992

Abstract

The principle of administrative morality in Brazil requires public agents to act honestly and in accordance with ethical and legal standards. Administrative immorality, therefore, is understood as dishonest conduct associated with bad faith. Administrative improbity, which results from such conduct, is defined as a deviation of values ​​and abuse of power for one's own benefit or that of third parties, causing harm to the common good. The old Administrative Improbity Law allowed the culpable modality, based on negligence or imprudence, but the new Law no. 14,230/21 eliminated this possibility, requiring effective proof of specific intent. This change, although in line with the doctrine that emphasizes bad faith, generated criticism due to the complexity of proving specific intent and the difficulty of effectively applying sanctions. The Federal Supreme Court confirmed that the new rule is not retroactive and applies only to cases that have not yet become final, resulting in the dismissal of actions based on the culpable modality. The legislative change, by requiring a higher level of proof and excluding generic intent, may represent an obstacle to the law's objective of preventing and repairing damage to the Public Administration. Therefore, it is essential to balance law enforcement to ensure effectiveness in combating corruption and protecting the public interest without imposing excessive sanctions.