Repositório RCAAP

The classical idea of state sovereignty is transformed as the economic and political globalization creates more interaction between states and the submission of these international bodies endowed with character-making. For this reason, the domestic legal systems should be prepared for that reality, including their constitutions mechanisms to ensure the effectiveness of commitments made internationally; especially in the protection of human rights. The constitutional courts of the states, such as the Brazilian Supreme Court, should promote a transversal reasoning that reconciles the reasoning rules of domestic law with the international courts, especially in promoting human dignity.

The work is the analysis of the contributions of intervention in the economic domain. Part of the general category of special contributions, recognizing that they have a tax nature and have as characterizing the reference to a particular group or sector and the allocation of revenue to this group or sector mentioned elements. Ponder that for belonging to that category , the interventional contributions also have a tax nature and consequence have the characteristics of contributions in general , moreover , to possess intervening nature , and be subject to the general legal regime of taxes and contributions should observe the limitations of legal and economic order . Also emphasizes that as an instrument of intervention such contributions can be perceived as restricting the fundamental rights , specifically property rights , free enterprise and free competition , requiring for its creation of the weighting values. Understands that the formal legal and tax dogmatic structuralist and is not sufficient to address the impact of the contributions of intervention in the economic domain, because it is based on a false notion of legality, which induces the application of a theory of incidence mismatch hypothesis with new reality. Argues that demand the resumption of the principle of legality in its material dimension, the legitimacy of imposing tax rule through democratic participation in abstract and concrete analysis of interventional exactions. Finally, considering that contemporary society , the result of reflexive modernity , delegate functions to the new tax law , especially to control and induce the market concludes that it is necessary to adopt functionalism as treatment of tax dogmatic . This method allows the opening of dogmatic to open debate , allowing a more coherent analysis of interventional contributions , as well as the abstract analysis does not require major changes in reflections hitherto made by the doctrine , the concrete analysis imposes the increased incidence theory hypothesis including the functional elements relevant to the group and said capacity allocation , elements enabling the verification in this case without subjecting the dynamic tax incidence financial facts , ensuring the control and legitimacy of interventional contributions in the current configuration of the social.

In the practice of law before the Labor Courts, it was observed that at various moments the private collective autonomy granted the union institutions sometimes had their feature corrupted. Once, at some point, it was verified as a way of violating fundamental rights of workers. It questioned up the reasons that were leading those documents that were created to protect the workers to take candid positions of precariousness and suppression of labor rights. In response to questions, focuses on globalization, on the changes in the world of work, on emptying the unions and even on the ethics of those institutions arouse. The interest then turned to fundamental rights in its dual implications, because on the one hand there are rights, benefits to be implemented by society and the State and on the other side they generate duties which are also extended to all involved. In the path, one comes to the Judiciary acting, specifically concerning about the TST, when it faces collective instruments violators of the fundamental rights to evaluate which measures will be implemented and how will the trials work. Anyway, it is a long way to be coursed because there is no prompt answers and each case should be assessed with their respective peculiarities. Evidently, the theme chosen by the Superior Labor Court as representative of the proposed problem (Topic 762) has not been examined by the Supreme Court, returning the issue for analysis of the TST, which, until the conclusion of the present study, was not performed.

El objetivo de este estudio es evaluar el papel argumentativo de la Corte Suprema en la consecución de los derechos sociales de las personas mayores y las personas con discapacidad, así como analizar la evolución de la comprensión de la Corte Suprema de Justicia para interpretar el artículo 20 de la Ley nº 8742/1993 como instrumento garante de un mínimo existencial este contingente de la población como excluidos y marginados. Por lo tanto, la obra recorrió varias calles, callejones y callejuelas, para mostrar el movimiento de la inclusión social de las personas mayores y las personas con discapacidad a través de la Asistencia de Beneficios de Prestación Continuada y su ruta a través de la interpretación del Tribunal Supremo de la Ley Nº 8742/1993, como instrumento garante de un mínimo existencial. El objetivo es verificar la legitimidad democrática de la legalización en la realización de los derechos de bienestar social y demostrar cómo la legalización afecta el presupuesto público, señalando los impactos causados por el poder judicial para decidir con que van más allá de los límites estrictos de la ley en una supuesta invasión de competencias; preguntándose si antes del fallo de los deberes constitucionales de los poderes legislativo y ejecutivo, el poder judicial estaría legitimado para intervenir convirtiéndose en el intérprete moral de la Constitución, que da la última palabra sobre su significado. En el contexto de una constitución del orden social tiene como objetivo delinear los desafíos en la implementación del diseño constitucional de la asistencia social. La trama de la Caja de Beneficios continua (BPC) se estudiará en todas sus Meandres, recordando la forma en que la Corte Suprema tres principales juzgados en los criterios de ingresos aprobadas por la ley; a través del estudio de estos casos resueltos por la Corte Suprema de Justicia, la evaluación de la función del poder judicial para garantizar la eficacia de una red de seguridad para los ancianos y los discapacitados, cuando en un curso de colisión son los derechos y deberes constitucionales fundamentales: el derecho a la asistencia sanitaria existencial mínimo decente frente a la reserva para contingencias o presupuesto de la política o el coste de los derechos. Considerando que, en el contexto de la discusión del tema, la cantidad gastada po or el Estado con la concesión y el mantenimiento de dicho beneficio, y con una interpretación telón de fondo de la constitución, la teoría de los principios, el Estado de derecho, la legitimidad democrática y el derecho a tener derechos que pueden ser contratados para traducir el ideal de la igualdad de consideración y respeto. Que los derechos triunfan o que minimizan las pérdidas y maximizar ganancias.

This research has as goal to demonstrate that the administrative law principles should to follow the changes in the society, as the other legal systems standards, to follow the changes in the society, and so, they should to exclude the old posture, fitting the requirement of a transparent and democratic public administration, forcing the trust between citizens and public agents. The law nº. 12.527, enacted on November 18th in 2011, and the Law on Access to Public Information, that enshrines the principle of the Administrative Transparency Act, and requires that the Public Administration act according to the dictates of democracy. A democratic State does not tolerate the concept of a Public Administration whose rule is confidentiality. The access to information is conceived as a democratic fundamental right, so, the transparency principle establishes the requirement that there be not only advertising of acts of public administration, but effective access to information. Thus, will be used the deductive method, the method of monographic procedure and as a technical procedure will be used the bibliography research, by study of doctrines dealing with the subject. First, the relation between democracy will be highlighted the relation between democracy, Democratic State, and the role of Pubic Administration under the principle of transparency. Then will be analyzed the contents and the structure of the right of access to public information and the principle of transparency, as instruments to end corruption. In this sense, this research tries to understand the way in which the law nº. 12.527/2011 is a breakthrough for the Brazilian legal system, to understand the reversal of the paradigm of the secrecy and demonstrate the paths until the issue of the legal document, and to verify if it enhanced the citizen s participation in the management of the interests protected by the Public Administration in a Democratic State.

The study intents studying and applying the dialog of sources hermeneutic technique to real cases on postmodernity. The newest paradigms for the law are the applicability of human rights and civil rights. Law‟s objective is to create and promote the perfect subjects , those who happen to have all the civil rights preserved. Utilizing the previous studies about vulnerability, and using it as connecting factors to apply the law and the previous and complementary paradigms to the recent dialogue of sources paradigm. In addition, the study intends to understand the process to apply the dialogue of sources as an hermeneutic methodology.

Coordenação de Aperfeiçoamento de Pessoal de Nível Superior

Mestre em Direito Público

This work has the purpose to study the principle of administrative morality, especially as to their content, as well as regarding how best to operationalize its interpretation / application. In this goal, it is evident the need for eticizar Public Administration, the Administrator and their respective acts performed in the exercise of public service, it can not allow the definition of what is ethical in a rule of law is fully open to arbitrary decisions . Against this background, we seek to answer with this study the following questions: the definition of the principle of administrative morality content has limits? And, if so, what are those limits and what are the parameters / methods suitable to be used during the process of interpretation and application of the principle of morality? It is in order to overcome these issues that the research will be developed. So, will begin with brief distinctions between Ethics, Morality and Law, presenting philosophical currents that sought to evaluate the relationship or separation of binding legal and moral systems over the years, ending the first part with some critical considerations as post-positivism, pointing to the need to establish interpretive parameters, especially in a postmodern context marked by pluralism and thirsty for increased security, including legal. The following will be addressed-the set of principles, while study of legal principles, addressing some definitions, distinctions between the rules, principles and normative postulates. In addition, the main functions of principles will be presented and attempts to demonstrate its importance in contemporary legal system, without, however, forget the need to reference point in the act of interpreting them and apply them in specific cases. Finally, the third and final chapter, it is a matter-of analyzing the legal principle of administrative morality, with some definitions, a history on the world stage and later in the Brazilian domestic level until you reach the treatment given to this principle by the Charter Magna 1988. In addition, even in the third chapter, will be differentiated juridicizada the morality of common morality; is also checked the question of the interpretation and application of the principle of morality, presenting a method and parameters aimed at greater legal certainty in achieving this hermeneutical process, concluding with the study of public administration in contemporary times and the role of the principle of administrative morality. Use it will, therefore, as theoretical references studies of Ronald Dworkin and Robert Alexy. Moreover, to achieve the purpose, the theoretical research will be performed after literature of scientific contributions on the subject, as well as documentary research, through the analysis of legislation and case law. Furthermore, the method to be used is the deductive, that part of inferences and general ideas for application to real situations, and the technical procedures to be used will be the thematic analysis and interpretation.

This work has as its theme \"notes on the essential and social function in existential contracts\" and how goals elaborate about the commonplace embodied in the idea that existential contracts have the same connotation and because of this the realization of the social function should be equally. The preparation of this work took place from a literature search deductive and dialectical and it was concluded that fundamental rights are inherent to all people, should be guaranteed by the state and aimed at promoting human dignity, which is a fundamental value of the land in order to produce direct effects also in private relationships. The social function of the contract, of a constitutional nature, serves to harmonize the interests of the parties and the community, and can be considered as an implication of the effectiveness of fundamental rights. Existential contracts are contrary to those of profit and has as its object a well considered essential for a person\'s life, so it deserves a differentiated supervision, more incisive. The judiciary plays an important role in the reality of the social function within the existential consumer contracts, it must act in order to guarantee consumer rights and the collective, the balance between the parties, the substantial equity and contractual justice. The fact that a contract is existential consumption legitimizes a higher incidence of social function on its content.

The study aims to demonstrate that the democratic rule of law is to demand the application of the fundamental right to good administration and public transparency for citizens to participate effectively in public life, in view of the effective exercise of social control to charging a proba and efficient administration. In this sense, the administrative law is a social science that applies and projects actually under certain justice parameters, brings principles to be observed by the Public Administrator in the exercise of administrative functions, with a view to the public interest. Thus, it is essential to comply with the duty of probity in public affairs manager for the realization of democracy. Given the pursuit of effective public transparency, its multifaceted nature is brought up, whether as a fundamental right of citizens, fundamental duty of the State, or as principle of public administration as a way to demonstrate that only from this is possible ethical assurance in treating public matters. Thus, it will be used deductive approach method, as a form of reflection, starting with the universal assumptions explicit intention to become truths in particular universal truths, besides the method of monographic procedure, analyzing documents, articles and doctrine, and as the legislation governing the issue. Thus this research is to investigate the scope of good governance dimension as a fundamental right of citizens to demonstrate the essentials of public transparency, namely, probity, ethics and administrative morality and understand the social control in the inspection of acts of public administration and guarantee mechanism of the democratic principle and the achievement of the democratic rule of law.

The prevalence of the Constitution emphasizes the axiological hegemony of principles that become normative pedestal of the legal system, stopping the function of ensuring an interpretive and integrative criterion, a spongy, incomplete and imperfect system. On this track of thought, axiological validity of fundamental rights demand the legitimacy of state prerogatives with communication between state and citizen, in a dialectical relationship that requires democratic participation from the enjoyment of basic rights as defined from the notion of citizenship. This dissertation analyzes the fundamental right to health, through the public health system (SUS). Being a theoretical work, analyzes its guiding principles and corresponding laws. In the face of objective reality and fateful, critical and analytical approach is urgent and imperative to share some of the numerous existing problems, but also important it is to analyze and discuss possible solutions. In this respect, it is particularly highlighted public-private partnerships and its peculiarities. Therefore, to express the real potential of these analyzes to pharmaceutical assistance as a complementary activity object of the private sector through the model of publicprivate partnerships, implementation of the right policies to access to medicines and pharmaceutical patents and their relativity as form of effectiveness of the principle of efficiency in pharmaceutical care. It makes up this long journey in pursuit of making efficient and effective the fundamental right to health.

This work aims to verify the controversial use of judicial precedent in Brazil and the risk of decisions on the ground out of context. The search begins with the origins of the legal traditions common law and civil law. Then points out some positive aspects of the institute\'s application in Brazil, especially its legal effects. After exposes points that deserve criticism, especially in its application, riddled with generic and decontextualized content, with the intention to solve the slow pace of justice. The issue presented is: judicial precedents are used appropriately? It has as main objective to analyze the judicial precedents and their application in the Brazilian legal system and specific, positive and negative aspects in the procedural practice. Delimits to the area of concentration Fundamental Rights and Guarantees, in that it addresses the risk of violation of the constitutional principles of equality, when you have separate trials for the same cases, access to justice, when it hinders the right of action of claimants , reasons for decisions when it goes to the foundation of several previous decisions of the case and legal certainty, when frustrated the applicant\'s expectations that trust certain jurisprudential understanding. The line of research is Ptotection Legal and Public Policy, since it deals with the current judicial function in the Brazilian legal system, their bases, their duties and their contradictions. The research is guided by the traditions of common law and civil law of the nineteenth until nowadays. The research technique is literature and documents through the study of the doctrine and judged. The theoretical framework is Lenio Luiz Streck, with the statement that the precedents are ready decisions. The results are: the influence of the common law tradition in the Brazilian legal system, the previous application of the advantages, and the presence of ruled in previous decisions, susceptible to decontextualized judgments.

The study has the intention to propose a differentiated hermeneutics to certain types of contracts. It is undeniable that depend on the situation in which it operates the contractual relationship , especially considering the vulnerable position of a party and the essentiality of the contracted object , it needs to analyze , interpret and apply careful hermeneutics to the promotion of the human person on the basis of their fundamental rights. In this way , passing by the realization of studies of fundamental rights in private said relations as well as the need to promote human life , based on the concepts of existential minimum , one can establish the understanding that in certain contractual relations is appropriate hermeneutics defends them that human life even if the cost of mitigating patrimonial interests.

The hypothesis developed in this work is that, in the context of post- modernity, while the jury is raised to the status of constitutional entrenchment clause and recognized as a fundamental guarantee individual freedoms, paradoxically in their practice conformation It was being, in many cases, used as true apparatus of repression, as a violation of precisely the right instrument by which the Federal Constitution instructed him to ensure. In other words, the jury would be democratic in legal discourse, however deeply authoritarian in praxis. It will investigate, primarily as public opinion and the media, driven by deep social, historical and cultural changes promoted by the late modernity , influence the jury \'s decisions and how this influence compromise your function of protecting fundamental rights, reason for being the state organization.

The society went through several revolutions , wars, killings and other atrocities order to reach a more humane thought, with the creation of specific laws that protect the dignity of the human person , the Declarations of the rights of men , international human rights treaties , conventions, covenants ,etc.The social conflicts have always existed and the right search pacify life in society normalizing conducts and penalizing those that confront most important legal assets . Based on the theoretical assumption of the application and effectiveness of rights , understanding that every human being should be considered as a subject of rights as established by the Federal Constitution of 1988 , it is observed that the traditional legal conceptions of the penalty and its application are being rethought and updated according to the needs of each society . The Criminal and Criminal Procedural Law should be applied to light of the Magna Carta , respecting and guaranteeing basic rights. The Penal Execution Law establishes the procedures and benefits realized at the time of the sentence , analyzing the objective and subjective criteria of the condemned. One of the benefits to be studied is the redemption , in other words the reduction of the sentence by the completion of work and study as the relevant legal provisions . The penalty has various purposes such as prevention, retribution and particularly the rehabilitation of the condemned or admitted , that aims to provide socioeducational measures to enable every prisoner to be reinserted in decent society. The specific objectives has been to observe the classic dimensions recognized by doctrine and courts on the redemption of the study and at work, and public policy for its effectiveness , showing new alternatives to ensure the rights of citizens.

This paper deals with the search, based on fundamental rights and guarantees the rule of democratic rule, as may justify that the time of maximum security measure duration should not exceed the limit of the penalty abstractly restraint applied to the offense committed, with the March the theoretical garantismo Luigi Ferrajoli. In this sense, the text initially exposes ideas about garantismo, democratic rule of law and limiting principles of jus puniendi to address the theme. From there, they are treated arguments against and in favor of stipulating a maximum duration for the security measures. The central idea of the text is based on the inability of the security measures have their maximum duration is indeterminate, in the way currently to article 97, § 1, of the Brazilian Penal Code. The garantismo as jusfilosófico model adopted in this paper, provides tools for imposing any restrictions to the time duration of the security measures. In this sense, with the principles of legality, equality, proportionality, sealing the perpetual character of penalties, legal certainty and dignity of the human person, it appears that Article 97, § 1 of the Brazilian Penal Code It is unconstitutional and that it is up to the magistrate to fix a ceiling for the implementation of security measures at the time he pronouncing the sentence. So the idea is that there should be the establishment of a period of maximum duration for security measures and that the proposal more in line with these fundamentals is the establishment of a maximum term of compliance with security measures having as limit sentence in the abstract to the crime.

Conselho Nacional de Desenvolvimento Científico e Tecnológico

The aim of this study was to compare ant community structure between the savannas of Brazil and Australia. The study was conducted in woodland savanna areas nearby Darwin, in northern Australia, and Uberlândia and Caldas Novas in central Brazil. The sampling design consisted of eight 400 m line transects, four in each continent, with eight pitfall traps and four baits located on and around each of 20 trees evenly spaced along each transect. Ant richness and species turnover were compared at three spatial scales: pitfalls associated with a tree, trees within a transect, and transects within a savanna. The composition of the Australian and Brazilian savanna ant faunas was broadly similar at the sub-family level, despite the very low proportion of shared genera and species. Overall ant abundance was almost three times higher in Australia than in Brazil, both on the ground and on vegetation, but overall species richness was higher in Brazil (150 species) than in Australia (93). Species richness was similar at very small (pitfall trap) scales, but was increasingly higher in Brazil with increasing spatial scale. In the Australian savanna and, to a lower extent, in the Brazilian savanna the ant assemblage from the trees was a nested subset of the ground ant assemblage. However, while in Australia there was a positive relationship between tree and ground ant abundance, but not for ant richness, the same relationship was found for ant richness, but not for ant abundance, in the Brazilian savanna. Interspecific competition was relatively more important for the ant community structure of the Australian savanna than for the Brazilian savannas, regardless of the nesting/foraging stratum. Also, interspecific competition was relatively more important in structuring soil than compared to the tree assemblages. Finally it was found that there were greater ant richness, abundance and dominance at nitrogen-rich baits than at carbohydrate-rich baits for both soil and tree ant assemblages. My study revealed scale-dependent differences in species richness and species turnover for savanna ant assemblages in Australia and Brazil. This further underlines the importance of biogeographical context when analyzing ant communities and also highlights the importance of processes acting at regional scales in determining species richness in ant communities. I also concluded that interspecific competition is an important force in structuring the savanna ant community but other factors such as evolutionary history, habitat preferences and stochastic events may also play an important role in the organization of the savanna ant community.

Despite being extremely abundant and diverse, ground-dwelling spiders are poorly known in Brazil. The present study, conducted between April 2005 and February 2007, investigates the composition, richness and diversity of ground-dwelling spiders, as well as the influence of seasonality on them and the structure of this community. It was carried out at the Panga Ecological Station in the State of Minas Gerais, southeastern Brazil. Three very distinct phytophysiognomies (campo cerrado, cerrado and cerradão) were sampled using pitfall traps during five days every two months. A total of 3,477 spiders of 112 species and 31 families were found. At least eight new species were found and one species, Trocantheria gomezi (Trochanteridae), was recorded for the first time in Brazil. All sites presented unique species compositions, richness and diversity. Increased abundance and richness were observed during the wet season. The peak of individuals was in October and April registered the lowest abundance. Furthermore, the first ecological data for Tenedos perfidus (Zodariidae), an endemic species of this Ecoregion, was presented. Between the eight guilds found, active hunters on the ground were the most abundant in the three habitat types, followed by web-builders and ambushers. The community structure vary between phytophysiognomies and between seasons. Abundance per guild was higher during wet season. The diversity among ground-dwelling spiders in Brazilian Savannas is very heterogeneous and pointed out the importance of conserving different habitat types for the maintenance of their biodiversity.