As controvérsias acerca da (Im)prescritibilidade do dano ao erário: As ofensas aos princípios constitucionais

Abstract

This paper aims to analyze the incompatibility of the imprescriptibility of the State's compensation claims resulting from the injuries caused to the treasury with the homeland order. In this sense, it is up to us to demonstrate the importance of the prescription institute for our organization, its emergence, as well as its current application in the Brazilian legislation. Next, we seek to present the injury to the treasury, showing its characteristics, more specifically, its elements, some harmful conduct to public coffers and the position adopted by the Public Administration when facing the injurious act, in order to reach the main core of the present work, namely, the controversies caused by the unintelligence of Art. 37, §5, which allows the courts to decide in favor of imprescriptibility. We also seek to analyze the doctrinal position on the subject, observing the points of view on each side, in addition to the focus the courts have given to the issue, selecting three recent judges that have gained considerable relevance - MS 26.210/2008, RE 669.069/2016 and RE 852.475/2018 -to build a wellgrounded critical analysis of the matter.