Discricionariedade administrativa aparente na qualificação de organização social

Abstract

This work aims to demonstrate that there is no discretionary competence in granting the legal title of social organization to private non-profit entities focused on activities of public relevance. The conclusion of the lack of administrative discretion arises from the proposition to maintain that the qualification is an administrative act bound by constituting an act of extension of law and as an instance of administrative control. The qualification is the verification of the compatibility of the rules of constitution and operation of a third sector entity with the legal regime of public law by fulfilling legal requirements. Hence, it gives a legal advantage to the interested party who may from then on enter partnerships with the Public Administration and receive financial resources, goods and public servants. Despite the interpretation from the Constitution given by the Federal Supreme Court of the administrative approval regarding the qualification of social organization, it is sought to demonstrate the hypotheses in which the discretion disappears in the analysis of the concrete case in the light of the administrative principles and the effects of law. The legal bound in the qualification is a step towards understanding and improving the entities of the third sector that have the subjective right to demand from the administrator the legal titles provided by law. Moreover, the bound is a step towards the establishment of legal requirements that allow the development of public policies and the third