O abuso do direito no Direito do Consumo

In Consumer Law there is a special concern to protect the consumer, who is the weaker party in the legal relationship. With this thesis we intend to show that the professional sometimes needs protection against abusive conducts from consumers. The thesis describes the different categories of abuse of rights and explains some types of consumer contracts. After examining some of the consumer’s rights, we list some situations where the consumer acts frequently with abuse of rights, by analyzing judicial decisions. We conclude that it is not possible which conducts may involve an abuse of right in an abstract manner. Only by analyzing every case and its characteristics individually can one decide where there is an abuse of right.

A caracterização do trabalho análogo ao escravo na jurisprudência dos tribunais brasileiros

Based on bibliographical research and the analysis of court rulings, this study investigates the characterization of slave-like labor by Brazilian courts. After the alteration of article 149 of the Brazilian Penal Code, introduced by Law nº 10.803/2003, which typifies the practice of contemporary slavery in Brazil, divergent characterizations of this practice remain. The courts currently employ the broadest concept of contemporary slave labor, in which the crime is characterized by the engagement in one of the following conducts established as a criminal offense: labor with the restriction of freedom, submission to exhaustive working conditions, degrading working conditions, and debt bondage. The engagement in one of the above is therefore enough to constitute a crime. Contemporary slave labor in Brazil is not characterized only by the restriction of the worker’s freedom, as in the case of forced labor or debt bondage, but also through the submission of the workers to situations that offend their human dignity. Individual freedom and the dignity of the human person, fundamental tenets of the Brazilian Federal Constitution, are juridical resources safeguarded by law. Contemporary slavery is not limited to the mere infringement of labor laws, but represents a severe violation of the human rights of the workers involved.

A equidade na indeminização dos danos não patrimoniais

This study examines the quantification of compensation for non-pecuniary damage, awarded by means of judicial decisions based on equity, and seeks to verify whether such calculation safeguards legal certainty and predictability when applying the law, as well as whether it observes the principles of proportionality and equality. Firstly, the limits for discretionary judgment permitted to the judge were determined, by evaluating the criteria established under the law. Then, by examining the grounds of the judicial decisions in cases that had been selected beforehand, this study sought to detect operation modes in concrete considerations of equity used by judges. The examination of the grounds on which these judicial decisions are based permitted the comprehension of the calculation method used in each case and the observation that the criteria of compensatory nature, such as the extent of the damage and the respective consequences, assumed a primary role. Despite discrepancies in viewpoints with regard to certain issues of law, the jurisprudence examined reveals that great care is taken to consider the solutions reached in similar cases, in an attempt to ensure that the different criteria applied in the quantification of compensation are given uniform relevance. The comparison of decisions, reported to cases with similar legal contours, did not reveal relevant discrepancies in the calculation criteria used, nor are they disproportionate regarding the amount of compensation awarded, which means that resorting to equity, in determining the compensation to be awarded due to nonpecuniary damage, does not jeopardize legal certainty or predictability when applying the law, and observes the principle of proportionality, which is anchored in the constitutional principle of equality. The study performed, led to the conclusion that the grounds on which judicial decisions are based, by itemising the elements which are taken into account and the criteria adopted by the judge, allow these to be taken into consideration in similar cases, contributing towards uniform interpretation and application of the law, ensuring legal certainty and predictability when resorting to equity while quantifying compensation.

O Ne bis in idem no Espaço de Liberdade, Segurança e Justiça e no Direito Europeu da Concorrência

Ne bis in idem, understood as a procedural guarantee in the EU assumes different features in the AFSJ and in european competition law. Despite having a common origin (being, in both sectors the result of the case law of the same jurisdictional organ) its components are quite distintic in each area of the integration. In the AFSJ, the content of bis and idem are broader and addressed at a larger protection of individuals. Its axiological ground is based on the freedom of movements and human dignity, whereas in european competition law its closely linked to defence rights of legal persons and the concept of criminal punishment of anticompetitive sanctions as interpreted by the ECHR´s jurisprudence. In european competition law, ne bis in idem is limited by the systemic framework of competition law and the need to ensure parallel application of both european and national laws. Nonetheless, the absence of a compulsory mechanism to allocate jurisdiction in the EU (both in the AFSJ and in the field of anti-trust law) demands a common axiological framework. In this context, ne bis in idem must be understood as a defence right based on equity and proportionality. As far as its international dimension is concerned, ne bis in idem also lacks an erga omnes effect and it is not considered to be a rule of ius cogens. Consequently, the model which the ECJ has built regarding the application of the ne bis in idem in transnational and supranational contexts should be replicated by other courts through cross fertilization, in order to internationalize that procedural guarantee and broaden its scope of application.

Arbitragem de consumo no direito brasileiro

This dissertation analyzes how the current Constitution and the Brazilian law establish consumer protection, arbitration and access to justice. Following we try to demonstrate why arbitration is a method rarely used in the resolution of consumer disputes in Brazil. It also examines the doctrinal and jurisprudential aspects of the conflict between the Brazilian Arbitration Law (Law nº. 9.307/96), which allows the arbitration clause in contracts of adhesion, and the Consumer Protection Code (Law nº 8.078/90) that in article 51, VII, considers as abusive the arbitration clause. Furthermore, analyzes new proposed bills under scrutiny by the National Congress on the issue and identifies the causes, in the Brazilian legal system, hampering the use of arbitration in consumer relations. Concludes that there are no principle obstacles preventing consumer litigations to be settled by arbitration. High costs, mistrust, oppression, misinformation of consumers and non-participation of the State, being a totally private institute, are factors that generate distrust, suspicion, and have prevented the development of arbitration in consumer relations in Brazil.

A videovigilância no local de trabalho

The emergence of new technologies has introduced significant changes in the citizens life’s. There is a constant evolution of technological means and profound impact of their use in the habits of life of the human being. These new technological media are important tools in labor relations. The working and businesses worlds are increasingly turning to these new technologies, so that the use of video surveillance in the workplace is nowadays common. New technologies in general and the use of video surveillance in workplace in particular are providing ways to allow control of the work performance that are desired by most employers. However, the collection of images in the workplace often collides with the fundamental rights and freedoms of workers, in particular, with the right to privacy. The subject concerns the question of investigating is whether the images collected in workplace can be used as evidence in disciplinary proceedings. In fact, this issue is controversial. Doctrine and jurisprudence defend, at least, two responses for the same question. Those who understand that the evidence may be admitted for not violate any right of the worker, and others who argue that the evidence should not be admitted in disciplinary office. In the Portuguese legal system, there is, even, a new intermediate theory that begins to be defended, that only on certain occasions the evidence may be admitted. The solution to this problem involves the study of employment law and data video surveillance processing. Analysis of workers fundamental rights is fundamental to come to a grounded conclusion.