Negociação de ressarcimento de dano patrimonial ao erário na Lei Anticorrupção e na Lei Improbidade

Resumo

The present work aimed to examine whether it is legally feasible for the amount of indemnification for damages caused to the Public Administration as a result of administrative misconducts punishable under the Administrative Improbity Law (Law No. 8,429/1992) and/or the Anti-Corruption Law (Law No. 12,846/2013) be negotiated through an agreement. It was found that there is a legal requirement that the indemnification in such cases must always be full, so that the indemnity to be paid by the private party must cover the entire extent of the caused damages. This requirement could lead to the understanding that it would not be possible to negotiate the value of the indemnification. However, the definition of what constitutes full indemnification necessarily depends on the application of a methodology to calculate the extent of the pecuniary damage caused in the specific case and, consequently, the amount of the resulting indemnity. In this regard, it was observed that there are concrete cases in which different methodologies may be applied to calculate the extent of the pecuniary damage, which will invariably lead to different indemnity amounts. Therefore, it is concluded that it is legally feasible for the private party and the competent agency to consensually implement a specific technical solution, among the various possible ones, to define the extent of the damage to be indemnified in favor of the Public Administration, and of the value of the full indemnification in case at hand. The fact that the Federal Court of Accounts has jurisdiction to exercise control over the factual basis covered by the agreements and to verify the occurrence of damages to the public treasury should not prevent the implementation of consensual solutions regarding the amount to be paid. The Federal Court of Accounts should defer to the agreement and to the criteria used to establish the amount of indemnity owed for the full indemnification of the damages, under penalty of creating legal uncertainty and unduly replacing the agency competent to enter into the agreement.

Ficha do documento

Tipo

Dissertação

Ano

2026

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/38574

Temas

Administração PúblicaGovernança

Palavras-chave

Dano ao erárioRessarcimento integralAcordosPossibilidade de negociaçãoLei de Improbidade AdministrativaLei AnticorrupçãoTribunal de Contas da UniãoDamagesFull indemnificationAgreementsFeasibility to negotiateImprobity lawAnticorruption lawFederal Court of AccountsDireitoDano patrimonialReparação (Direito)Improbidade administrativa - Legislação - BrasilCorrupção - LegislaçãoBrasil. Tribunal de Contas da União