The foundations in brazilian administrative law

Abstract

ABSTRACT: among the entities that are part of the indirect Public Administration, the public foundations present the greatest doctrinal controversy about their legal nature. Three different understandings about the legal regime of public foundations are known in the doctrine, the first one recognizes they are all of public legal regime, the second one recognizes they are all of private legal regime, and the third, with the majority, recognizes foundations with private or public legal regime. In the present article, I am referring to the third understanding, intending to demonstrate its coherence based on the teachings of José Cretella Júnior in his book "Fundações de Direito Público" and studies of Roman law mainly based in the teachings of José Carlos Moreira Alves. For that purpose, it starts from the analysis of the foundations according to the General Theory of Law and according to its substrate according to Roman Law. In the sequence, the species of foundations are analyzed according to their legal regime, to then delve deeper into the so-called state foundations. The foundations are also analyzed according to the draft law of a new organization of the Brazilian Public Administration, and a concrete case from the study of the Minas Gerais Constitution.

Key-words: foundations, legal regime, public law and private law, Roman law.