Repositório RCAAP

This studyhas the scope to analyze the concept of mental health as an essential element of the fundamental right to health, taking as reference the principle of human dignity. The concept of dignity as a guiding principle of the whole legal system and places the individual at the center of the system concerns.The key right to health is provided in the Brazilian Constitution in Article 6 and 196 and following, and despite the dealings given to it in the fundamental dimension, there is no content specifications clarifying their essential conforming elements. However, by adopting the concept of health proposed by the World Health Organization, Brazilian lawmakers recognizes the health establishment the physical, mental and social elements.Thus, using the deductive approach, the monographic method procedure and technical research literature procedure, beyond the transdisciplinary approach and use of legal arguments in development principle logical, will be the first to analyze the evolution of interpretation of the person and of human dignity through of the times, emphasizing it\'s current use.Then will study the connection of this principle of fundamental rights, and their intrinsic relation with the formation of an existential minimum core rights necessary to the implementation of dignified life, where health is a part.Following are studied aspects pertaining to the fundamental right to health, delimiting it\'s forecast in the Brazilian planning and identifying characteristics to, immediately, address her mental health as her essential constituent element. Finally, will be held the related analysis all institutes developed in research in order to scale the scope of the psychic content of health from the perspective of human dignity.

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The present work has the scope to examine whether the risks of development were disciplined in the Brazilian legal system and its legal and social consequences. In order to do this, the first chapter aimed at analyzing the risk of development within the postmodern reality, as well as in the consumer society; afterwards, the vulnerability of the consumer was recognized as the base of the consumerist microsystem, in addition to the constitutional custody of this subject and structure of the consumption legal relation. The second chapter focused on the general features of the protective consumer civil liability, in order to understand the risks of development in the country. In the last chapter, the risks of development were analyzed in some foreign countries, as well as in Brazil. Finally, three proposals to resolve the controversy about the suppliers civil liability on the development risks have been suggested, in order to better protect the consumers

La investigación examina el uso de los medios dialógicos de resolución de conflictos, como la mediación y la conciliación, para ciertos tipos de disputas. En este sentido, fue realizado un estudio de quais son ellos, cómo se desarrollaron, cuál es su procedimiento y en qué sentido los resultados son más satisfactorios. Por otra parte, se analizó el contexto jurídico y social del tema, se analizando el cambio de paradigma legal que ocurrió, la verificación de los aspectos de la modernidad reflexiva, las teorías críticas del derecho y el pluralismo jurídico. En este sentido, se entiende el nuevo enfoque del acceso a la justicia, con su concepto amplio, no sólo se resumiendo en el acceso al Poder Judicial. Con este fin, se estudió la Justicia Restaurativa y la Mediación Comunitaria, que representan realizaciones de la idea presente en esta obra. Con el fin de cumplir con el desideratum de este trabajo se utilizó la investigación teórica, con la búsqueda de la literatura basada en textos jurídicos, doctrinas legales, artículos de revistas jurídicas en la búsqueda de un análisis crítico y comparativo para desarrollar el tema. Se há hecho uso de la investigación documental a través del procedimiento metodológico histórico y comparativo, y el procedimiento técnico utilizado fue el análisis histórico y de contenido. A través del análisis de los artículos y libros publicados sobre el asunto y por medio de método deductivo e inductivo, se examinaron las teorías y posiciones de autores nacionales y extranjeros cuyas obras contribuyeron en el desarrollo de la investigación. Por último, se concluyó que el uso de un procedimiento dialógico, sobre la base de los medios alternativos de resolución de conflitos, puede ser una herramienta importante para el empoderamiento social, la ciudadanía activa y la democratización

This paper discusses the judicial review under the focus of theories of institutional dialogues. Main objective, aims to demonstrate that the weak systematization of institutional dialogues allows to find points of their incidence in the Brazilian, specifically the unconstitutionality by omission. Aims, specifically, to analyze the relationship between the Supremo Tribunal Federal and Congress in interpreting the Constitution and in the unconstitutionality by omission. It also aims to analyze the relationship of institutional dialogue and decisionism in unconstitutional omission and analyze the unconstitutional omission from the perspective of the agenda power of the Supremo Tribunal Federal. Finally, aims to analyze technical decision in which the Supremo Tribunal Federal leaves room for the intervention of other state power in implementing the Constitution. The selected research methods are mainly bibliographic and legislative and jurisprudential research. It also used the deductive method. It was found, after detailed analysis on the institutional dialogues, they have a meager systematization, despite its two central points: the performance as an empirical theory, in which interaction will always be, more or less, among the Powers; and normative theory, that this interaction is required for generating results with less prone to error and more democratically legitimate. Thus, can be found them in the brazilian legal system, greatly as regards the unconstitutionality by omission.

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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.

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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.