O Que É Imperatividade? (Com exemplos)

Por
Pedro Santos
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611
6039

O Que É Imperatividade? A palavra imperatividade lembra império ou imperador. Também pudera. O Poder Público, em seus modos, atua como um imperador quando, por exemplo, cria uma observância obrigatória (determina rua é mão única). Ou seja, tem a ver com a Supremacia do Poder Público sobre o Privado (não importa se você gostou, terá que moldar o seu comportamento em prol de todos).

Veja uma questão da FCC (2019) que assume essa tônica:

QUESTÃO CERTA: Os atos administrativos, como manifestações ou declarações de vontade da Administração pública, para assim serem considerados, são dotados de: imperatividade, porque os atos administrativos unilaterais se impõem aos administrados independentemente da vontade deles.

Segue uma bateria de questões mescladas da FCC e CEBRASPE:

QUESTÃO ERRADA: Ao fazer uso de sua supremacia na relação com os administrados, para impor-lhes determinada forma de agir, o poder público atua com base na autoexecutoriedade dos atos administrativos.

Negativo. É com base na imperatividade. Lembre-se: determinar que uma rua será apenas mão única (tem a ver com forma de agir). Isso é imperatividade.

QUESTÃO CERTA: A imperatividade caracteriza-se pela permissão para a imposição de obrigações a terceiros, ainda que estas venham a contrariar interesses privados.

QUESTÃO CERTA:  De acordo com Maria Sylvia Zanella di Pietro, pode-se definir o ato administrativo como a declaração do Estado ou de quem o represente, que produz efeitos jurídicos imediatos, com observância da lei, sob regime jurídico de direito público e sujeita a controle pelo Poder Judiciário (In: Direito Administrativo, Atlas, 14ª edição, p. 188). A doutrina indica atributos específicos do ato administrativo que o distinguem dos atos de direito privado, entre os quais aquele presente em atos unilaterais e que importa a sua imposição a terceiros, independentemente da concordância destes. Tal atributo é denominado: Imperatividade.


QUESTÃO CERTA: É a qualidade que certos atos administrativos têm para constituir 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 do destinatário. O enunciado se refere ao seguinte atributo do ato administrativo: imperatividade.

QUESTÃO CERTA: Imperatividade é ao tributo pelo qual os atos administrativos se impõem a terceiros, independentemente de sua concordância.

QUESTÃO CERTA: Imperatividade significa que os atos administrativos são cogentes.

Verdade. Os atos administrativos são obrigatórios (cogentes), independentemente de se estar de acordo ou não com eles.

QUESTÃO ERRADA: A imperatividade é o atributo pelo qual o ato administrativo é presumido verídico até que haja prova contrária à sua veracidade.

A questão traz o conceito de um outro atributo: presunção de veracidade. Não é a imperatividade que diz que um ato é, a princípio, verídico. Mas sim a presunção da legitimidade. Ou seja, errada porque citou um conceito equivocado de imperatividade.

QUESTÃO ERRADA: São atributos de todos os atos administrativos a imperatividade e a presunção de legitimidade.  

A presunção de legitimidade e um atributo universal aplicável a todos os atos administrativos e atos da Administração (partimos do princípio de que o ato do Poder Público é legítimo). Ao contrário da presunção de legitimidade, a imperatividade é atributo da maioria (e não de todos) dos atos administrativos, não estando presente, por exemplo, nos atos enunciativos, como certidões e atestados, nem nos atos negociais, como permissões e autorizações. Fique atento a essas exceções!

QUESTÃO CERTA: Dentre outras características, distingue-se a autarquia das empresas estatais em razão de a primeira: poder editar atos dotados de imperatividade e executoriedade, enquanto as estatais são regidas pelo regime jurídico de direito privado.

QUESTÃO CERTA: A imperatividade que reveste os atos administrativos: impõe aos destinatários dos mesmos sua obrigatoriedade, como atributo destinado a garantir o interesse público, que é a finalidade de toda a atuação da Administração pública. 

QUESTÃO CERTA: A imperatividade é atributo presente apenas nos atos administrativos que imponham restrições de direitos, não se aplicando aos atos ampliativos de direitos.

IMPERATIVIDADE -> Poder para impor OBRIGAÇÃO. Não existe imperatividade em atos que ampliam ou concedem direitos, por exemplo, o direito ao transporte público, a administração não pode te obrigar a andar de ônibus, por isso não tem imperatividade.

Resumo: imperatividade é um atributo (e não requisito) do ato administrativo que se traduz pela máxima “problema seu se não gostou, obedeça”. Nem todo ato administrativo possui imperatividade, caso das certidões, atestados, permissões e autorizações.

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