With the evolution of society, it was necessary to establish rules and regulations to influence the welfare of the community. To achieve this goal were edited constitutions and laws under the Constitution, giving citizens more rights, but the exercise of these rights should be compatible with the social welfare. The use of liberty and property should be connected with the collective utility, not to imply a barrier to the achievement of public goals. So were conditioned directly on individual rights laws, and when the law does not specify a particular right or limitation of that right, it is for Public Administration to recognize and apply.
It required the creation of several organs, so that public administration could exercise its functions, and one of the organs responsible for the suitability of the individual right to the interest of the community has been called the Police Power. Thereafter, steady in our legal use of the phrase police power to set the power to limit the Administration''s interest.
But over time this power, eventually become addicted, when, for example, the Administration commits: Purpose of the deviation (excess), or otherwise, an act that invokes the doctrine of Administrative Oversight, which are species Abuse of Power. The Power of Police must not be omnipotent, uncontrollable, but limited and can not undermine liberty and property. Consequently, the police regulation should not be excessive or unnecessary point of setting an abuse of power, practice reprehensible and contrary to the democratic rule of law.
In this context arises the internal or external to curb such abuses, among other constitutional provisions supported by the Principle of Proportionality. This principle is nowadays widely used in our planning, and is considered a general principle of law.
Basically it appears the need of the public official has to bring the case to the applicable standard, weighing and given the means ensuring the least burdensome as possible between their interest and the Government. Its origin occurred in administrative law and was created precisely as a criterion of legitimacy of the police power.
Power of Police Abuse of Power and the Principle of Proportionality application, are thus issues that are in our day to day and its importance deserves to be addressed, especially in light of the "Citizen Constitution" as he called it the late Ulysses Guimarães our Federal Constitution which was promulgated in 1988.
2. Meaning of Police Power
The word police comes from the Latin "political" and Greek "politics," linked with the term policy, the word "polis". The Power of Police may be linked or discretionary, and in the administrative area its attributes are: discretion, self-enforceability and coercivity.
Now we will see, according to some scholars patriotic lesson in dealing with this subject, its concept:
Hely Lopes Meirelles to the police power and the power available to the general government to condition and restrict the use and enjoyment of property, activities and individual rights, in benefit of the community or the state itself (Meirelles, 2002). He then concludes by saying that the police power and, in short, the set of assignments given to Administration to regulate and restrict, the public interest in tailoring, individual rights and freedoms. (Meirelles, 2002).
As Odette Medauar teaching, the police power constitutes a limitation on individual freedom, but is intended to ensure that their own freedom and the essential rights of man (Medauar, 2000).
Again, Hely Lopes Meirelles explained that the Police Power is the engine braking available to the public administration to curb abuses of individual rights (Meirelles, 2002). In simpler terms, can be understood as any limitation on individual liberty and property in the public interest. As a rule, the Administration plans an action or omission a "do" in particular.
Even in certain cases in which the Police Administration requires positive conduct of the individual, for example, rates of pay property taxes, to transfer the vehicle to another, even in such cases, the idea prevails conduct by omission, for the purpose of the act is to always get a failure: to avoid a bad damages arising from the exercise of individual right, adjusting the individual to exercise collective wellbeing.
Another means of expression of the Power of Police is monitoring the activities and assets under the control of the Administration to ascertain the conditions and requirements for the use of the property and exercise activities regulamentadas.O control occurs through the editing rules and regulations and As for concrete acts.