The Adversary System and the Right to a Fair Hearing in the State-Owned Enterprises Law (Law 13303/2016)

Abstract

This study is about the adversary system and the right to a fair hearing in the scope of the
administrative sanctions referred to in Brazilian Law 13303/2016. The State-Owned Enterprises
Law (LE) inaugurated a new hiring regime for state-owned enterprises (SOEs), which began to
adopt, preponderantly, the Private Law regime, unlike what occurred under Law 8666/1993, in
which the Public Law regime prevailed. This established a condition of equality in the contractual
relationship between the Administration and the supplier, eliminating prerogatives of the Public
Administration that were valid under Law 8666/1993. After introducing the initial concepts relevant
to better understand the subject, we discuss the adversary system and the right to a fair hearing,
emphasizing that state-owned enterprises were not fully exempt from observing the Public Law
regime, even with the advent of the LE, since characteristics typical of Administrative Law remain
in the law. In this step, we conclude that the adversary system and the right to a fair hearing must
be observed when punitive claims are involved, meaning that the LE has failed to provide for the
possibility of appeal, which is an indissociable part of the constitutional right to a full defense. Thus,
the internal regulations of state-owned enterprises must use the legislation related to the subject,
such as Law 9784/1999, as a complement, including in the case of a state or municipal company,
as already decided by the Brazilian Superior Court of Justice (STJ).