Desapropriação por utilidade pública de bens imóveis e o decreto lei 3.365/41: entre direitos fundamentais e o interesse público

Abstract

Around the institute of the general law of expropriation, implemented in decree-law 3,365/41, there was always a consensus that it needed revision, however, since the promulgation of the 1988 Constitution, little has been done in this regard, both on the part of the doctrine, nor on the part of public administration. Despite the aforementioned inertia, administrative law as a whole has not remained in this same situation, currently undergoing several transformations, including in its most classic canons from this current perspective. In this sense, in addition to investigating the content of decree-law 3,365/41 and its scope within the system in a broad way, the present work aims to analyze how the aforementioned constitutional limit is consistent with the practice of expropriation for public utility, through the its mechanisms, more specifically with the observance of the individual's fundamental rights in the expropriation process, whether abstractly or concretely. To this end, a bibliographical review is carried out regarding administrative phenomenology as an essential factor in understanding the topic, investigating how the current understanding of the relationship between administration and administered will impact on the relationship between expropriator and expropriated, separating the phenomenology of expropriation, from the conception by the public administration of the public purpose intended by it, through planning and ending with the compensation of the expropriated person. Furthermore, the use of tools that may be adopted by the Administration is discussed, with the aim of making the expropriation process more democratic by expanding the scope of law no. 13,867 of 2019, more legitimate through the use of the Duty to Consult and Accommodate and more rational and objective through the use of Artificial Neural Networks. The dissertation also seeks, in the end, to adapt the interpretation of Decree-Law 3,365/41 to the current humanist context of our order and which permeates the constitutional text in its objectives and fundamental rights contained therein, emphasizing the figure of the individual, even in the face of public authorities' intentions.