Quem tem direito à moradia? :uma análise da política nacional de habitação e dos programas de habitação de interesse social (2003-2005)

This dissertation analyses the Brazilian housing policy of today s, focusing on the programmes in the socalled Social Interest Housing Subsystem in order to discuss to what extent the government has been able to grant housing constitutional rights in the country. The discussion is about housing policy and the principles in the country s Constitution regarding the role of housing as a social right, a right that must be granted by the state. This refers to land rent theory to understand the relationship between capital and property and the reasons why, under capitalism, housing becomes a commodity in the market. Then, it discusses the national housing policy, which emphasizes land ownership through financing, that is, via market, a process that excludes all low income population. In the conclusion, it is clear that, although government programmes cover extensively at least potentially the national territory as well as social group, subsidized housing programmes cannot be implemented in the city due to land prices because subsidy is too low. In this way, the law that grants housing rights to all Brazilian citizens is violated

A Eficácia dos direitos fundamentais nos contratos civis e de consumo: uma teoria contratual baseada na colisão dos direitos ou bens constitucionalmente protegidos

The apparent virtuosity that if could wait of the globalization and the neoliberalism has given signals of deterioration in the contractual relations, especially in contracts of mass consumption, generating innumerable offensive situations to the basic rights and the goods constitutionally protected of the contractors. In the world of today, still that it does not reveal any desire, the individual practically is compelled to contract, for force of necessities and customs completely imposed, mainly in face of the essentiality of the services or agreed to goods. Ahead of as much and unexpected changes in the civil liames and of consumption, dictated for the globalization, it comes to surface the reflection if the private law e, more specifically, the civil law, meet prepared adequately to deal with these new parameters of the economy. The present dissertation has the intention to investigate if the globalization and the consequent neoliberalism, in this beginning of third millennium, will imply to revive of the principles and the basics paradigms of the contracts that consolidated and had kept, for more than two centuries, the liberal State. One notices that the study of this phenomenon it gains importance to the measure where if it aggravates the decline of the social State (Welfare State), with the embrittlement and the loss of the autonomy of the state authority, over all in countries of delayed modernity, as it is the case of Brazil, that presents deep deficiencies to give or to promote, with a minimum of quality and efficiency, essential considered public services to the collective and that if they find consecrated in the Federal Constitution, as basic rights or as goods constitutionally protecting, the example of the health, the education, the housing, the security, the providence, the insurance, the protection the maternity, the infancy and of aged and deficient. To the end, the incidence of constant basic rights of the man in the Constitution is concluded that, in the process of interpretation of the right contractual conflicts that have as object rights or goods constitutionally proteges, in the universe of the globalized perhaps economy and of the neoliberalismo, it consists in one of the few ways - unless the only one - that still they remain to over all deal with more adequately the contractual relations, exactly that if considers the presence of clauses generalities in the scope of the legislation infraconstitutional civil and of consumption, front the private detainers of social-economic power. To be able that it matters necessarily in disequilibrium between the parts, whose realignment depends on the effect and the graduation that if it intends to confer to the basic right in game in the private relation. The Constitution, when allowing the entailing of the basic rights in the privates relations, would be assuming contours of a statute basic of all the collective, giving protection to the man against the power, if public or independently private

Efetivação da garantia de defesa no estado constitucional de direito: colisão entre o poder punitivo e garantia de defesa

The domination of the violence for the Rule of law awakened a tension between the practice of the punitive power and the right to counsel. However, throughout the recent history of the Criminal law, this shock of forces has been determined for the punitive power. In this perspective, the present work intends to submit the guarantee of defense to a critical judgment, in search to conciliate its content to the Constitutional State of Right. For in such a way, it will be necessary to recognize the disequilibrium of the situation, but without considering the superiority of any of these elements. The State in such a way must fulfill the function to punish the culprits as to acquit the innocents. Despite the law is far from obtaining a harmonious speech, it is necessary that the defense guarantee coexists the punitive power as part of an only public interest, which is, to make criminal justice. In such a way, the existence of a sustainable balance between the punitive power and the guarantee of defense depend on the minimum interference of Criminal law and, also, of the judicial position in the concrete case. The present work faces, therefore, the moment of crisis of the Criminal law, consolidated with the advent of a new way of thinking according to the procedural guarantees, that will demand the overcoming of the old concepts. The Constitutional State of Right not only constitutes an efectiveness of the regime of the right to counsel, but in a similar way it searchs to accomplish the right of action and criminal justice as a whole. Knowing that the philosophy of the language raises doubts on the certainty, the truth and the judgement, it is imposed to understand that the defense guarantee is no more about a simple idea, but, in the crooked ways of the communication, we intend to find what the judge s function is when he faces this new reality

A ação civil pública como meio de concretização do direito à saúde na Constituição de 1988

The work presented here is about aspects of the constitutional extension in which is the public civil action with the objective of verifying its aptitute in tutelaging subjective situations derived from fundamental rights, especially right to health assistance. Thus, it offers a clear analysis of the practical functioning of most aspects of the public civil action (lawsuit), with philosophical foundation and necessary doctrinaire to your comphehension. How it once was (history), how it could be (reform suggestion), how it is (current interpretation of the law) and how it should be (critic analysis of the microsystem of collective tutelaging of rights, its perspectives, as well as the efficacy of the public cilvil action about accomplishment of the right to health as supraindividual right). The objective is to analyse the main version of the theme (for instance: the impacts caused to the dissociation of the Procurations theory), so that it can be extracted the philosophy and the general theory, of the public civil action and collective tutelaging in general, pragmatically applicable to study purposes. With this theorical fountain, the reader will be in a more solid position, not only being able to understand the subtilities of the public civil action, but mainly being able to recognize its faults and present solid reform proposals and improvement. It is know that the Juridical Power (Procuration) does not allow any more inactivity about negating accession to health in its collective dimension (lato sensu: spread, collective stricto sensu and homogeneous individuals), being imputed to it novel usage that consolidates in the assumption of the role instrument set aside to be used by all with organized instancy of solution to collective conflicts in large sense. This happens, overall, because of the current justice politization, understood as juridical activism, connected to the struggle between the groups defending their interests and the acceptance of the constitution about solidifying the public politics of quality health

Devido processo penal: uma análise acerca dos direitos fundamentais sob a perspectiva do processo eletrônico

The current study presents an analysis about the automation of the lawsuits in Brazil, which opens a new direction to be followed by the National Secretary of Justice, applied indistinctively to the civil, criminal and labor lawsuits, as well as to the special court houses at any degree of juridisdiction. It treats, specifically, about the transition from the classic lawsuit with bureaucratic aspects to the electronic one, based on the simplicity of the functions, the quality of the oral and the readiness. The light of the constitutional principle of the reasonable duration of the lawsuit, while fundamental rigth of the defendant and, under de protection of the democratic guarantee, it investigates, from the theory of the fundamental rights to the reform movement of the lawsiut, in the scenery of the alien law and national law, the latter, mostly because it has the automation as a necessary improvement claimed by modernity, yet without forgetting of the humane character inherent to the criminal lawsuit. It faces the issue of of the disruption of the paradigm of the written formality of the Brazilian lawsuit, the problem of the resistance to the new automized method, the use of the video conference for the inquest of the witnesses as well as for the questioning of the defendant, the advancements of the virtual lawsuit on the Superior Courts, Federal Supreme Court and Superior Court of Justice, it treats also about the role of the National Council of Justice - CNJ - to uniformize the legal proceedings in the country. Without neglecting the effective respect to the fundamental rights, it focuses the cultural change necessary so that the electronic technology can be, in fact, in the indictment system, the means to reach with excellency the citizenship by the simplification of the legal proceedings, transposing the baseless bureaucracy and assuring an effective judicial service assistance in order to have a better quality of life

Teoria da despesa pública: uma leitura ético-constitucional em busca do possível da reserva

Brazilian law passes through a crisis of effectiveness commonly attributed to the extravagance of fundamental rights and public shortage. However, public finances are not dogmatically structured to solve the conflicts around the limitations of public spending. There are ethical conditioning factors, like morality, proportionality and impartiality, however, these principles act separately, while the problem of public shortage is holistic. Also, the subjectivity of politics discretionary in the definition of public spending, which is supported in an indeterminate concept of public interest, needs material orientation about the destination of public funds, making it vulnerable to ideological manipulation, resulting in real process of catching rights. Not even the judicial activism (such as influx of constitutionalism) is shown legally appropriate. The Reserve of Possible, also presents basic ethical failure. Understanding the formation of public shortage is therefore essential for understanding the crisis of effectiveness of state responsibilities, given the significant expansion of the state duty of protection, which does not find legal technique of defense of the established interests. The premise of argument, then, part of the possibility of deducting minimal model ethical of desire to spend (public interest) according to objective parameters of the normative system. Public spending has always been treated disdainfully by the Brazilian doctrine, according to the legal character accessory assigned to the monetary cost. Nonetheless, it is the meeting point between economics and law, or is in the marrow of the problem of public shortage. Expensive Subjects to modernity, as the effectiveness of fundamental rights, pass necessarily an ethical legal system of public spending. From the ethical principles deducted from the planning, only the democratic principle guides the public spending through the approval of public spending in the complex budget process. In other words, there is an ethical distancing of economic reality in relation to state responsibilities. From the dogmatic belief of insufficiency, public spending is evaluated ethically, according to the foundations of modern constitutionalism, in search of possible of the financial reserve, certain that the ethics of public economy is a sine qua non condition for legal ethics.