ORIENTAÇÕES ADMINISTRATIVAS VINCULANTES E PRECEDENTES: CRITÉRIOS PARA A UTILIZAÇÃO DE INSTRUMENTOS DE UNIFORMIZAÇÃO DE POSICIONAMENTOS JURÍDICOS NO ÂMBITO ADMINISTRATIVO

Abstract

The Code of Civil Procedure of the 2015 (CPC-2015) consolidated a precedent model that has the functionality to unify the interpretation of the texts of the legal order and confer legal certainty, equality and freedom in the application of law in Brazil. As an effect of the irradiation of the use of precedents in the current procedural system, items I, II and III of paragraph 4 of article 496 of the CPC-2015 allows the dismiss of the mandatory re-examination of the condemnatory sentence of the public administration that is based on an understanding that coincides with a judiciary uniformity juridical position (precedent). It happens, however, that item IV of the same legal provision also provides for the dismiss of the mandatory review of the sentence contrary to the public administration that is based on an instrument of consolidation of legal interpretations in the administrative sphere of the condemned public entity itself, without, however, establishing criteria to avoid or resolve an interpretative conflict that could arise between binding guidance signed at the administrative level (binding administrative guidelines) and judicial precedent regarding the same complex factual-legal issue. As a result, we intend to investigate how to avoid that, in specific cases, there is an interpretative conflict between the administrative instruments provided for in item IV of paragraph 4 of article 496 of the CPC-2015 and the judicial precedents listed in items I, II and III of the same legal provision, for the purpose of dismiss the necessary re-examination and for guiding the legal postures of the public administration. Based on an inductive methodology (which included the analysis of legislation, doctrine and jurisprudence), we concluded that the binding administrative guidelines are related to the precedent model conceived by CPC-2015. For this reason, the formation and use of these instruments in the administrative sphere must consider the institutional role of the courts of precedents in the Brazilian legal system. This leads to our conclusion in the sense that the public administration, through its legal consultancy and representation body (Public attorneys), must observe the existence of judicial precedent before signing binding administrative guidance on how the law should be interpreted and applied at the administrative sphere, which avoids the existence of an interpretative conflict between item IV and items I, II and III of paragraph 4 of article 496 of CPC-2015 for the purpose of dismiss the necessary re-examination and guiding the legal positions of the public administration.