Diferença Entre Exigibilidade e Imperatividade

Por
Pedro Santos
-
619
4738

A diferença entre exigibilidade e imperatividade não é clara para muita gente. Por isso, cabe tecermos algumas palavras sobre esse tópico muito importante, aqui, no Caderno de Prova.

Vou citar algumas definições que desconheço a autoria (me parece se tratar de GASPARINI, Diógenes. Direito Administrativo. 10a ed. São Paulo: Saraiva, 2005). Se alguém souber, comente abaixo para que possamos dar os devidos créditos.

Imperatividade é a qualidade que certos atos administrativos têm para construir situações de observância obrigatória em relação aos seus destinatários, independentemente da respectiva concordância ou aquiescência. Destarte, sempre que o ato administrativo for dotado desse atributo, impõe-se mesmo que contrarie os interesses dos destinatários. Tem esse atributo o ato administrativo que elege determinada rua para a realização de feira livre o que atribui mão única de direção a certa avenida.

Também é portador desse atributo o ato que institui uma servidão (colocação de placa de nome de rua em parede de residência particular, situada em uma esquina). Tal qualidade é chamada de poder extroverso do ato administrativo. Não obstante é encontrável nos atos administrativos que outorgam direitos (permissão, autorização) nem nos meros atos administrativos (atestado, certidão), pois tais atos não impõem obrigações.

Exigibilidade é a qualidade do ato administrativo que impele o destinatário à obediência das obrigações por ele impostas, sem necessidade de qualquer apoio judicial. Em razão disso, o Estado pode exigir e obter dos destinatários do ato administrativo o cumprimento da obrigação ou do dever imposto, sem auxílio de ordem judicial. A exigibilidade induz o destinatário à obediência do que prevê esse provimento.

As determinações para que o particular construa muro no alinhamento da rua ou pode árvores cujos galhos ameaçam a segurança da rede elétrica são atos portadores desse atributo. Com efeito, a não execução do muro ou a não realização da poda ensejam à Administração Púbica a possibilidade de multar o administrado desobediente, sem necessitar do prévio reconhecimento desse direito (exigir o muro ou a poda de árvore) por parte do Poder Judiciário ou mesmo a execução dessas tarefas pela própria Administração Pública e posterior cobrança do responsável por essas obrigações. Observe-se que não pode a Administração Púbica, fundada nesse atributo do ato administrativo, compelir materialmente o obrigado a executar referidas obrigações. Nesse particular a exigibilidade diferencia-se da autoexecutoriedade do ato administrativo.

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Autoexecutoriedade: É a qualidade do ato administrativo que dá ensejo à Administração Púbica de, direta e imediatamente, executá-lo. O Poder Executivo, por exemplo, não precisa pedir a um juiz que lhe permita, por meio da polícia, dispersar uma passeata de gente pedindo pela volta das atividades no país em pleno espalhamento do coronavírus. O Governador manda a força repressora nas ruas e executa o plano.

Basicamente, imperatividade é a qualidade de se impor a terceiros independentemente da sua vontade (O Poder Público se impõe à minha pessoa). A exigibilidade traduz a noção de que o particular é obrigado a cumprir a obrigação (sou obrigado a cumprir uma obrigação que me foi imposta).

Vejamos uma questão da CEBRASPE (2014):

QUESTÃO CERTA: Há exigibilidade de taxas em razão do efetivo exercício do poder de polícia.

Sim, taxa é obrigação. Devo cumprir e honrar o meu compromisso, quer queira ou não.

Segue outra questão, porém da VUNESP (2014):

QUESTÃO ERRADA: O ato administrativo possui o atributo da imperatividade, que é a qualidade que impele o destinatário à obediência das obrigações por ele imposta.

Olha aí o erro. Obediência à obrigação é exigibilidade, e não imperatividade.

CEBRASPE (2022):

QUESTÃO ERRADA: A imperatividade do ato administrativo, também conhecida como poder extroverso da administração, é o atributo que diz respeito à imediata realização do objeto do ato, independentemente do crivo judicial.

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