Consequentialism in substitute sanction agreements

Abstract

The present work identifies the possibility and scope of the so-called legal consequentialism in the execution of sanction-substitute agreements entered with the public administration. Starting from a brief theoretical conception of what is currently understood as consequentialism, the aim is to identify this figure beyond unilateral decisions materialized in the context of the external or internal control of the administration. The purpose of this study will be to demonstrate that even though they are not strictly speaking decisions, the sanction-substitute agreements must equally observe the so-called practical consequences provided for in Articles 20 and 21 of Law No. 13,655/2018 (a Law that introduced provisions on legal certainty and efficiency in public law, including the requirement to consider practical consequences in decisions). Therefore, the core of the present study will be to demonstrate that the necessary consequences provided for in the Brazilian Introduction to the Norms of Brazilian Law (LINDB) are not only mandatory in decisions in the strict sense, but must also be considered in the consensual activity of the public administration, concluding and demonstrating that the bilateral and consensual nature of these agreements does not exempt them from the responsibility of evaluating the practical, legal, and administrative consequences of their implementation aiming at achieving the public interest.