Diferença Entre Vício Sanável e Vício Insanável

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Vícios sanáveis: competência (contanto que não exclusiva), forma e objeto (plúrimo). FOCO!

Vícios Insanáveis: motivo, objeto (único), finalidade e incongruências entre o motivo e resultado do ato. É O FIM!

CEBRASPE (2021):

QUESTÃO ERRADA: Manoel, chefe de determinada repartição pública, presenciou Caio, servidor público subordinado a ele, desviando dinheiro público. Ciente do fato, Manoel aplicou, de forma imediata, pena de demissão a Caio. Entretanto, este contestou a sanção, alegando que, como era servidor estável, apenas poderia perder o cargo mediante decisão judicial transitada em julgado. Alegou, ainda, que o ato administrativo que aplicou a pena possui vicio de motivo e, portanto, deveria ser anulado. Com relação a essa situação hipotética, julgue os itens que se seguem. A alegação de Caio está correta quanto à anulação do ato, porquanto o vício de motivo está relacionado à inobservância nas formalidades essenciais à existência do ato.

Comentários:

São cinco os elementos do ato administrativo: competência, finalidade, forma, motivo e objeto. O vício de forma (e não de motivo) é que está relacionado à inobservância nas formalidades essenciais à existência do ato.

Gabarito extraoficial: Errado.

Fonte: Direção Concursos.

QUESTÃO CERTA: Marcos, servidor público federal, praticou ato administrativo com vício de forma, não observando formalidade indispensável à existência do ato. O servidor, ao constatar o vício, revogou o ato administrativo e proferiu novo ato observando a formalidade exigida por lei. No caso narrado: não é possível a revogação, haja vista a ilegalidade do ato praticado.

A forma do ato (seja um apito, gesto, escrita) só impossibilitará o ato de ser revogado se ela (a forma) constar na lei, isto é, existir um ordenamento jurídico apontando qual a forma para determinado ato e se este mandamento for desrespeitado. Como a questão deu a pista “não observando formalidade indispensável à existência do ato” – concluímos que é essa a hipótese a ser levada em conta no tocante ao binômio revogação x invalidação (anulação). 

Assim, em face do exposto, a opção é mesmo pela anulação do ato, dado que o indivíduo não prestou atenção / observou o que a lei diz sobe a forma do ato em questão.  

QUESTÃO CERTA: Considere a seguinte situação hipotética: o Ministro de Estado da Educação, em situação emergencial, praticou ato administrativo de competência do Ministro do Planejamento. Nesse caso, a convalidação: não é possível, em razão do vício de competência narrado.

Apesar de a banca não ter deixado claro na questão, a competência era exclusiva.

QUESTÃO ERRADA: Se determinado imóvel for declarado de interesse social, para fins de reforma agrária, mediante resolução, em situação que contrarie disposição legal segundo a qual o ato deve ser praticado mediante decreto, o vício de forma será sanável, por configurar mera irregularidade passível de convalidação.

Nesse caso, por prescrever o ordenamento forma essencial para o ato administrativo, não é possível a sua convalidação.

QUESTÃO CERTA: O controle judicial sobre a administração abrange tanto os atos vinculados como os discricionários, já que todos têm de obedecer aos requisitos de validade. Um vício de competência tanto pode ocorrer em ato vinculado como em ato discricionário.

Requisito / elemento do atoAto VinculadoAto Discricionário
CompetênciaPrevista em lei (vinculada)Prevista em lei (vinculada)
FormaPrevista em lei (vinculada)Prevista em lei (vinculada)
FinalidadePrevista em lei (vinculada)Prevista em lei (vinculada)
MotivoPrevisto em lei (vinculado)Não previsto em lei (discricionário)
ObjetoPrevisto em lei (vinculado)Não previsto em lei (discricionário)

QUESTÃO CERTA: Os atos administrativos vinculados, quando editados pela Administração pública com vícios: podem ser convalidados no caso de serem sanáveis os vícios de legalidade que o maculam, como, por exemplo, em se tratando de vício de forma.

Sim! Para convalidação é preciso ter foco! Forma, objeto plúrimo, competência não exclusiva.

QUESTÃO ERRADA: São sempre convalidáveis os atos administrativos com vícios de competência, forma e motivo, mas não os atos com vícios de finalidade e objeto.

Negativo. A competência exclusiva não é convidável.

QUESTÃO CERTA: Os atos administrativos podem ser produzidos em desrespeito às normas jurídicas e, nestes casos, é correto afirmar que: é possível convalidar atos com vício no objeto, ou conteúdo, mas apenas quando se tratar de conteúdo plúrimo.

Sim! Para convalidação é preciso ter foco! Forma, objeto plúrimo, competência não exclusiva. Até porque, se são vários objetos, algum será reaproveitado.

QUESTÃO CERTA: É possível a convalidação de atos administrativos quando apresentarem defeitos relativos aos elementos: competência e forma.

Sim, se a competência for privativa, por exemplo, o ato poderá ser convalidado (expurga-se a parte irregular apenas);

QUESTÃO CERTA: Nem sempre é possível a convalidação do ato administrativo; depende do tipo de vício que atinge o ato.

QUESTÃO CERTA: Custódio Bocaiúva é Chefe de Gabinete de uma Secretaria de determinado Estado. Certo dia, em vista da ausência do Secretário Estadual, que saíra para uma reunião com o Governador, Custódio assinou o ato de nomeação de um candidato aprovado em primeiro lugar para cargo efetivo, em concurso promovido pela Secretaria Estadual. No dia seguinte, tal ato saiu publicado no Diário Oficial do Estado. Sabendo-se que a legislação estadual havia atribuído ao Secretário a competência de promover tal nomeação, permitindo que este a delegasse a outras autoridades hierarquicamente subordinadas, é correto concluir que o ato praticado é inválido, porém sujeito à convalidação pelo Secretário de Estado, desde que não estejam presentes vícios relativos ao objeto, motivo ou finalidade do ato.

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QUESTÃO CERTA: Considere o seguinte exemplo de ato administrativo: nomeação para cargo público inexistente. No caso citado, há: vício no objeto do ato administrativo.

QUESTÃO ERRADA: Situação hipotética: Determinado contrato público foi assinado por um funcionário subordinado à autoridade competente; um ano depois, ao constatar o problema, a autoridade convalidou o ato, após certificar-se da ausência de potencial lesivo e verificar que os requisitos contratuais haviam sido preenchidos. Assertiva: Nessa situação, a autoridade competente agiu ilicitamente ao convalidar o ato, uma vez que este estava eivado de vício insanável.

Comentário:O vício de competência é um vício sanável, passível de convalidação, exceto se o vício atingir ato de competência exclusiva ou de competência quanto à matéria. Na situação hipotética em questão, não há nada que demonstre a presença das exceções, de modo que se aplica a regra geral. Ademais, como o ato não provocou prejuízo a terceiros, ele poderia sim ser convalidado, ou seja, a autoridade não agiu ilicitamente.

QUESTÃO CERTA: o motivo, se inexistente, enseja a anulação do ato administrativo.

Comentário: O motivo é elemento vinculado do ato administrativo, ou seja, não se pode aceitar um ato administrativo sem motivo. Logo, havendo um ato administrativo sem motivo, acarretar-se-á na anulação do ato administrativo (teoria dos motivos determinantes).

QUESTÃO ERRADA: A inobservância da forma não enseja a invalidade do ato.

Usou o verbo inobservar é porque existe uma lei determinando como algo deverá ser feito. Comentário: Na verdade, é que nem sempre a forma será exigida, porém quando exigida em lei, ela deverá ser observada, do contrário ensejar-se-á a sua nulidade.

QUESTÃO CERTA: O ato administrativo ilegal que já produziu efeitos comporta, em regra, anulação.

QUESTÃO CERTA: As decisões proferidas em processo administrativo que: (I) tenham se baseado em fatos ou motivos inexistentes; (II) tenham sido proferidas por autoridade incompetente; (III) não tenham sido motivadas; ou (IV) se destinem a finalidade distinta daquela indicada: Devem ser anuladas pela própria Administração, observado o prazo decadencial previsto na legislação e considerando que não sejam sanáveis os vícios identificados: Devem ser anuladas pela própria Administração, observado o prazo decadencial previsto na legislação e considerando que não sejam sanáveis os vícios identificados.

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