DISPONIBILIDADE E TRANSIGIBILIDADE NO TRATAMENTO DOS CONFLITOS COM A FAZENDA PÚBLICA: RECONFIGURAÇÃO E SISTEMATIZAÇÃO

Abstract

The objective of this work is to systematize the concepts of availability of the right and transigiability in the context of the adequate treatment of conflicts with the Public Treasury, proposing classification criteria and a specific technique to verify the admissibility of self-composition in these cases. It analyzes the informative constitutional principles of Public Administration, passing through different doctrinal currents and presenting critical observations about its current understanding. It studies the legality control of Public Administration acts, debating concepts suchs discretion and administrative merit. It relates this study to the role of Public Advocacy in the proper handling of conflicts. It discusses the concepts of availability and transgibility (admissibility of self-composition), approaching their nuances and variations, under different criteria. It criticizes the legal rules that use the availability of the right as a criterion for the removal of procedural burdens. Focusing on the different restrictions to waiver, it presents a proposal for classifying unavailable rights. It investigates the proper treatment of conflicts with the Public Treasury from a microsystem perspective, criticizing the current paradigm that allows self-composition only through an express rule. It points out the need for reconfiguration of classical institutes and reinterpretation of legal norms. It addresses the position of the Public Treasury as a habitual litigant, its possible causes and solutions. It presents a proposal for an own methodology of analysis, in the face of the concrete case, of the transgibility with the Public Treasury.