A posição de garantidor do chefe do executivo na administração pública direta

Resumo

This paper finds dogmatic redoubt and practical interest in episodes in which we are faced with heads of the executive power being denounced in criminal actions, without the observance of essential premises of criminal law. Based on this background, this paper is dedicated to analyzing whether it is possible to attribute the condition of guarantor – how we call in Brazilian criminal law – to the head of the executive power, in casu the mayor, and, if so, what would be the criminal material basis that would support this grant. The dogmatic relevance of this paper, as well as its potential contribution to the practice of criminal law, is the result of the unreflected conception that the chief executive, as the highest authority in the direct public administration, has the duty of vigilance, with relevant criminal consequences, on the criminal conduct practiced by his members of his government, especially in the case of individuals appointed by him to exercise positions of trust, who must, for this reason, also be held criminally responsible for such acts. Thus, the focus of this paper investigates whether this ill-considered conclusion is correct and why. This is given that the mere attribution of the condition of guarantor to someone, due to a formal position that is attributed to him, as is the case of the position of head of the executive branch, is not, in the eyes of criminal law, sufficient reason to base his position of guarantor and, mainly, give rise to its criminal responsibility for omission. This study is dedicated to this concern, generated in the face of accusations arising from the automatism that the mayor must answer for such acts, and the wrong way in which this criminal responsibility has been attributed. Thus, because of the above context, the questions that guide the work arise, namely: Will the head of the municipal executive power occupy the position of guarantor in the face of criminal conduct practiced by his appointed Secretaries, during his administration? If so, on what grounds?

Ficha do documento

Tipo

Dissertação

Ano

2023

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/33379

Temas

Administração Pública

Palavras-chave

Criminal lawGuarantor dutyCriminal liability for improper omissionHead of the Executive PowerDireito penalDever de garantidorResponsabilidade penal por omissão imprópriaChefe do Poder ExecutivoDireitoDireito penal - BrasilPoder executivoResponsabilidade penalCrime por omissão