Análise econômica da expansão do direito penal

Aborda a evolução histórica das liberdades individuais, a partir de apontamentos pertinentes ao constitucionalismo liberal, à formação do Estado de Direito e ao advento dos regimes democráticos amparados em direitos fundamentais. Pretende, quanto aos direitos fundamentais, mostrar diversas classificações, funções, critérios e conceitos, além da sistematização de gerações ou dimensões de direitos. Discorre acerca da teoria dos limites aos limites, ao lado de teorias correlatas em profícua confrontação doutrinária, tudo com fins a estruturar os conceitos basilares de direitos de liberdade, que orientam o restante da obra. Trata do cenário histórico-jurídico do surgimento da Análise Econômica do Direito (AED), consistente, sobretudo, no jusrealismo norte-americano, abordado, em paralelo, com o realismo jurídico escandinavo. Aplica conceitos e premissas de microeconomia ao Direito Penal, com ênfase para a investigação do comportamento criminoso empreendida pela Economia do Crime. Avança não apenas restrito à perspectiva teórica, trazendo dados empíricos e implicações concretas da teoria econômica dos delitos e das penas, que serão reconhecidos na evolução e redução da criminalidade, nas políticas de desarmamento, na estruturação empresarial do narcotráfico, bem como na otimização da administração penitenciária brasileira a fim de concretizar o preconizado pela legislação de execução penal. Desenvolve estudo a partir da leitura histórica do Direito Penal, passando pelos conceitos de sociedade complexa e de riscos. Analisa, após fixados tais pressupostos, algumas causas do processo de expansão do Direito Penal com vistas a identificar propostas alternativas ao hiperpunitivismo hodierno, preservando-se, assim, os direitos de liberdade que sustentam o Estado Democrático de Direito. Propõe uma desconstrução do conceito jurídico do princípio da eficiência administrativa, demonstrando como seu conteúdo normativo foi demasiadamente mitigado pela recepção precária dos respectivos elementos econômicos por parte da doutrina e da jurisprudência pátria. Ressalta a importância jurídica da eficiência econômica, devidamente harmonizada com os demais princípios constitucionais, por força do instrumental analítico da AED Positiva. Investiga criticamente algumas teorias sociológicas tendentes ao funcionalismo penal, sob referenciais de eficiência e de direitos de liberdade. Almeja, ao final, propor a AED como alternativa à expansão funcionalista e irracional dos tipos e sanções criminais, de modo que a aproximação entre Economia do Crime, eficiência econômica e Direito Penal contribua para blindar os direitos de liberdade das vicissitudes típicas da sociedade contemporânea

A mediação como instrumento concretizador do direito fundamental à saúde: uma alternativa à judicialização de conflitos Natal 2013

In Brazil, the 1946 Constitution enshrined the right to health, having it defined as the possession of the best state of health that the individual can achieve. Already the Federal Constitution of 1988 lifted that right to the status of fundamental social right, which transcends the effectiveness and cure of the disease is based on the joint liability of public entities for the provision of a quality service, efficient and prioritize human dignity and comprehensive evaluation of patients. According to the World Health Organization, the definition of health, first characterized as the mere absence of disease, has become recognized as the need to search for preventive mechanisms to ensure the welfare and dignity of the population. Garantista this context, the growing seem lawsuits that deal with the implementation of public policies, especially in the area of the right to health, the omission of which the Government can result in the risk of death. Hence the concern of law professionals about whether or not the intervention of the judiciary in cases that deal with providing material benefits of health care. It claims to break the principle of separation of powers, disobedience to the principle of equality and the impossibility of judicial intervention in the formulation of public policy to try and exclude the liability of public entities. In contrast, the judiciary has repeatedly guardianships granted injunctions or merit determining the supply of materials indicated by the medical benefits that accompany the treatment of patients who resort to a remedy. In this context, mediation, object of study and resolution presented in this work, is presented as an instrument conciliator between the reserve clause and the right to financially possible existential minimum, as it seeks to serve all through rationalization of health services , avoidance of negativistic influence of the pharmaceutical industry, with prioritizing the welfare of the individual and the quality of relationships. This is alternative way to judicialization that in addition to encouraging and developing active citizen participation in public policy formulation also allows the manager to public knowledge of community needs. It is in this sense that affirms and defends the right to health is no longer the mere provision of medical care and prescription drugs, but a dialogue conscious existential minimum to guarantee a dignified life

Responsabilidade civil como função social na distribuição e revenda de combustível face ao direito do consumidor e ao meio ambiente

The civil liability of the distribution and retail fuel stems from the fact business activity developed to be high risk and can be said as risk inherent or latent danger that has predictability and normality characterized by placing the consumer in a position of vulnerability, such as the environment, both public policies defined and constitutional protection. Consumer protection as a fundamental right and the environment as the primacy of social order aims the welfare and social justice, as inserted right to the third dimension, are guarded by the State when it creates operational standards through public policies and indirectly intervenes in the economic order. This intervention is due to consumer protection and the environment are economic order principles, founded on free initiative and free competition, ensuring everyone a dignified existence which underlies the irradiation of fundamental rights in private initiative, before the commercial evaluation, mass consumption, the emergence of new technologies that link consumers to the environment before the protection of life, health and safety and ensuring a better quality of life for present and future generations. To repair this damage and the right to information are provided as fundamental rights that put the person at the epicenter of the relations and collective interest stands out against individual interests that to be done need public-private partnership. In such a way that the used methodology was an analysis of documents correlating them with bibliographic sources whose goals are to recognize the civil responsibility as limit to subjective right, having to develop a social function where guilt and risk grow distant and the damage is configured as a consequence of inherent risk, requiring the State interventional postures in fulfilling its public policy; prevailing in these risky activities the solidarity of those involved in the chain of production and socialization of damage forward those are provided directly of products of hazardous nature that put in a position of vulnerability the environment and the consumer

O direito fundamental contra a autoincriminação: a análise a partir de uma teoria do Processo Penal Constitucional

The right against self-incrimination is a fundamental right that works in the criminal prosecution, and therefore deserves a study supported by the general theory of criminal procedure. The right has a vague origin, and despite the various historical accounts only arises when there is a criminal procedure structured that aims to limit the State´s duty-power to punish. The only system of criminal procedure experienced that reconciles with seal self-incrimination is the accusatory model. The inquisitorial model is based on the construction of a truth and obtaining the confession at any cost, and is therefore incompatible with the right in study. The consecration of the right arises with the importance that fundamental rights have come to occupy in the Democratic Constitutional States. In the Brazilian experience before 1988 was only possible to recognize that self-incrimination represented a procedural burden for accused persons. Despite thorough debate in the Constituent Assembly, the right remains consecrated in a textual formula that´s closer to the implementation made by the Supreme Court of the United States, known as "Miranda warnings", than the text of the Fifth Amendment to the U.S. Constitution that established originally the right against self-incrimination with a constitutional status. However, the imprecise text does not prevent the consecration of the principle as a fundamental right in Brazilian law. The right against self-incrimination is a right that should be observed in the Criminal Procedure and relates to several of his canons, such as the the presumption of not guilty, the accusatory model, the distribution of the burden of proof, and especially the right of defense. Because it a fundamental right, the prohibition of self-incrimination deserves a proper study to her constitutional nature. For the definition of protected persons is important to build a material concept of accused, which is different of the formal concept over who is denounced on the prosecution. In the objective area of protection, there are two objects of protection of the norm: the instinct of self-preservation of the subject and the ability to self-determination. Configuring essentially a evidence rule in criminal procedure, the analysis of the case should be based on standards set previously to indicate respect for the right. These standard include the right to information of the accused, the right to counsel and respect the voluntary participation. The study of violations cases, concentrated on the element of voluntariness, starting from the definition of what is or is not a coercion violative of self-determination. The right faces new challenges that deserve attention, especially the fight against terrorism and organized crime that force the development of tools, resources and technologies about proves, methods increasingly invasive and hidden, and allow the use of information not only for criminal prosecution, but also for the establishment of an intelligence strategy in the development of national and public security

A alteração do tipo penal de adulteração de combustíveis: reflexo da constitucionalização do direito penal no mercado de combustíveis

The neoconstitutionalism led to a process of ethical revaluation of the normative systems and the process of constitutionalization of the many fields of law. This study examines the consequences of this process in criminal law, so important a Law field for the protection of the most valuable assets by the society, including the fundamental guarantees, thus emphasizing the necessity of protection of the collective and individual rights, which are guided by the observance of the defendants individual rights in the course of criminal proceedings and the search for the best efficiency of penal protection, according to the corollaries of defense against the state (prohibition of the excess or Übermassverbot) and the provision of rights by the state (prohibition of insufficient protection or Untermassverbot). The offense of fuel adulteration is taken as an object of study, since it is a vital market to a nation dependent of people and good s movement for their living, driven by fossil and biofuels. Such a crime affects essential legal interests to the development of society, interests such as the environment, consumer relations and economic order, particularly the principle of free competition. This paper seeks to analyze the need of a greater efficiency of this particular criminal protection, once concluded the conduct harm and social fear as a consequence by it as growing, and therefore having its former crime type, engraved in Article 1 of Law No. 8.176/1991, rewritten in compliance with the criminal law s principle of legality. Thus, the reformation proposals and legislative creation involving this crime were observed, with emphasis on the bill No. 2498/2003, which keeps it as blank heterogeneous criminal norm, kind of penal normative whose constitutionality is raised, including the forethought of criminal responsibility in the perpetrating of the offense as culpable and subsequently increasing the applicable minimum penalty, as well as the inclusion of new activities in the typical nucleus

Finanças públicas na nova ordem constitucional brasileira: uma análise comportamental dos municípios potiguares, nos anos antecedentes e posteriores à lei de responsabilidade fiscal LRF

The object of the present dissertation is to analyze the behavior of the public finances of the districts of the state of Rio Grande do Norte (RN), taking as reference a period fundamentally previous to the implementation of the Fiscal Responsibility Law LRF, comparatively to the first years, immediately after the advent of the mentioned institutional milestone. The central hypothesis of this study proposes that, from the institutions' viewpoint, the LRF sets securely consistent rules, in the orchestration of the behavior of the municipal revenues and expenses. These regulations, on the other hand, might be effective and reach the districts of the RN indiscriminately, apart from stabilizing tendencies and which are sustainable in the long run. In spite of this, the indicators calculated reveal that the districts researched show, during all the period under analysis, a diminished capacity of self-tax collection , and consequently, a high participation of the intergovernmental transfers in the composition of the current revenues. This behavior indicates that the goal of strengthening the municipal public finances, forecast in the LRF, tends to be only partially accomplished, due to the fiscal decentralism. The analysis and interpretation of the data are conducted from the literature of institutionalist orientation and in descriptive statistical tools applied to the municipal strata of the state of Rio Grande do Norte. Further on, it's used the econometrical method Pooled OLS, which demands the elimination of the municipal strata in order to allow the use of the model, in the attempt to strengthen and/or ratify the results of the research. Finally, the evidence reached in the dissertation show that the LRF brings better conditions to the potiguar municipal public finances, predominantly to the economically stronger districts; whereas the less dynamic municipal entities show rather divergent evidence, that is, their economies seem to be more oriented to a more pronounced state participation; therefore, it generates in the state of RN a certain antithesis in the results reached in the dissertation

Programa alfabetização solidária: um estudo sobre a experiência no município de Lagoa de Pedras/RN (1997 - 2003)

The educational reform of the 90 s was tainted by the objectives of the fiscal adjustments, resulting in the redefinition of the state s role in the financing and offering of teaching services, and bringing about a shuffling of the responsibility between the public and private sectors to promote education to young people and adults. The 90 s also highlighted the proliferation of providers and the multiplication of Educational Programs for Youths and Adults (EJA), implemented through partnerships between governmental and nongovernmental agencies. During this period of time, the agenda of educational responsibilities concerning analphabetism was organized in a process of decentralized of the state, with the following political, social, and economic objectives: to reduce the public deficit, increasing public savings and the financial capacity of the state to concentrate resources in areas considered indispensable to direct intervention; to increase the efficiency of the social services moffered or funded by the state, giving citizens more at a lower cost, and spreading services to more remote areas, expanding access to reach those most in need; to increase the participation of citizens in public management, stimulating communitarian acts as well as developing efforts towards the effective coordination of public figures in the implementation of associated social services. Thus, Assistance Programs co-financed by the government try to deal with the problem of analphabetism. Within the sphere of the 90 s educational policy decentralization, we come to see how the agenda dedicated to the reduction of analphabetism was formed by the Solidarity Alphabetization Program (PAS). Between 1997 and 2003, the latter agenda s decentralizing proposal was integrated in the management partnership for the operationalization of tasks and resources faced with the execution of the formal objectives. In this study, we identify the dimensions of the implantation and progress of the tasks carried out by PAS, in the municipality of Lagoa de Pedras/RN. However, we consider these Programs to assist in the process without guaranteeing the reduction of the causes or substituting the responsibility of the system once the monetary resources for program maintenance provided by the partners is exhausted

Atos, cenas e ações: encenações teatrais do multicampiartes no Pará

A pesquisa analisa o fazer teatral no âmbito do Programa Multicampiartes da Universidade Federal do Pará, principalmente com relação ao processo metodológico desenvolvido nas oficinas de teatro, nas cidades de Castanhal, Abaetetuba e Altamira. A análise tem como base os desdobramentos do fazer teatral como prática educativa e a articulação dos saberes dos artistas locais com os saberes dos professores do Programa. Acreditamos que essa articulação mediada pelo fazer teatral, contribui para a tomada de consciência de desejos, valores, inspirações permitindo a ampliação da sensibilidade e do juízo crítico do cidadão, tornando-o mais participativo e preparado para as escolhas no caminho da cidadania e da hominização. Fundamentamo-nos, especialmente, nas idéias de Paulo Freire (1987, 1981, 1996) e Augusto Boal (1991, 2003) por evidenciarmos e defendermos um fazer teatral implicado com as questões vivenciadas pelos homens no seu lócus de ação. Essa fundamentação pressupõe que a linguagem teatral é comprometida com a realidade sóciocultural, podendo atuar sobre ela e transformá-la. Metodologicamente, optamos pela análise das impressões e avaliação dos participantes através de depoimentos sobre a metodologia desenvolvida nas oficinas teatrais e suas implicações sócio-educativas nas comunidades. Os resultados apontam para uma diversidade de caminhos, dos quais destacamos: (a) a importância da presença da Universidade nas cidades como forma de reconhecimento do potencial artístico dos artistas locais; (b) as implicações na metodologia de trabalho organizada pelos professores do programa, cuja característica principal foi a flexibilidade e a disponibilidade para o inesperado que permitia maior vinculação com a comunidade local e maior envolvimento na formação no âmbito do Programa Multicampiartes. Apontamos, finalmente, a necessidade de organização de programas e ações que avancem no sentido da formação do cidadão, fora os muros da universidade e no cumprimento do seu papel, responsabilidade e compromisso social

O cidadão técnico em enfermagem :analisando as mudanças na sua profissionalização

The study analyzes the changes occurring in the professional qualification of the Nursing Technician in the Natal School of Nursing. It provides a historical discussion of Brazilian professional education, of the pertinent legislation in this type of teaching, and the repercussions related to the institutionalization of the Educational Directives Law. It interprets the discourse of the graduates of the complementary course of nursing auxiliary to nursing technician, for the year 2002, using the collective subject analysis and individual interviews. These revealed changes in the areas of knowledge-learning, knowledge-doing, knowledge-being, and an awakening to other changes besides the challenges being confronted. In this sense, nursing as a participant in a society that is effervescent with process changes, interacts socially, politically and professionally in this context, able to experience advances and retrogrades, depending on its political competency

Fatores da satisfação do cidadão com a gestão pública: um estudo sobre o orçamento participativo municipal

This thesis deals with the quality dimensions and factors affecting citizens satisfaction in the participatory budgeting process in a major city of Brazil. Participatory budgeting was introduced as a usual practice in many Brazilian cities since the 1990s. It is adapted a model proposed by Johnson et al. (2001) of customer satisfaction and loyalty antecedent factors with constructs related to governance also included, to evaluate the quality perception and satisfaction rates by citizens representatives in the participatory budgeting process. It is conducted a survey with a sample of 84 citizens representatives of the seven city regions of Natal, the capital of a Northeastern State of Brazil. It is applied descriptive and multiple regression statistical analysis. The main findings related to quality and governance constructs are that the quality factors are the main factors affecting satisfaction but also the tax construct is significative to satisfaction. More regarding it was found that for different perspective of the satisfaction there are different set of factors affecting it

Responsabilidade social empresarial: modalidades e grau de participação em meios de hospedagem em Ponta Negra, Natal/RN

That work has as objective to investigate and to analyze the strategies which they were developed by companies of lodging means with ends of social responsibility in Rio Grande do Norte (RN). Therefore, it got data along with the Office of Tourism of the Municipal district of Natal , the Office of Tourism of RN and the cadasters of the firms of the lodging means in the district of Ponta Negra. In after research of field, it verified the enterprises that now develop lodging activities in that quarter in Ponta Negra. It applied Instrument of research which it was elaborated based on the set of indicators of social responsibility of Ethos Institute, structured with binary questions and some open ones. It shows as results which actions the investigated companies develop. Confronting these results with researched theoretical referencial, it points an intermediate degree of socially responsible actions. Comparing with the evaluation accomplished by Ethos Institute, the investigated firms are in incipient condition, with punctual actions, however, they already present the awakening about this thematic

A influência da responsabilidade social empresarial na satisfação e fidelidade do cliente : um estudo com compradores de automóveis

This study presents an investigation of the influence of Corporate Social Responsibility (CSR) in customer s satisfaction and loyalty through a study with car s buyers, besides that, it aims to contribute to conceptual models of satisfaction and loyalty analysis by applying the model of Johnson et al. (2001), adapted for the introduction of variables of CSR and conscious consumption, in a car dealership in Natal / RN. The methodology has a descriptive quantitative approach and for the analysis results were applied statistical methods of simple and multiple linear regression analysis, descriptive analysis and exploratory analysis. The field research provided 90 valid forms. The results show that CSR affects the image of the company studied and is also one of the elements of the compound of satisfaction and loyalty. This study concludes that CSR should be considered in the strategic and marketing actions of firms

A pegada de carbono como um dos indicadores de sustentabilidade para medição da responsabilidade socioambiental empresarial: um estudo de caso na unidade sede da Petrobras em Natal-RN

As a contemporary tendency, it is been evidenced that the environmental changes theme, already admitted as a concernment to international economical and political reality, is also gaining repercussion on industrial and business sector. Firms are implementing actions on trial to minimize their own greenhouse gases (GHG) emissions impacts. However, the great majority of those actions of Corporative Social-Environmental Responsibility (CSR) are referred only to direct emissions of the main production systems. Direct emissions are those derived of an isolate process, without considering the upstream and downstream processes emissions, which respond for the majority of emissions originated because of respective firm‟s production system existence. Because the greenhouse effect occurs globally and the GHG emissions contribute to the environmental changes independently of their origin, it must be taken into account the whole productive life cycle of products and systems, since the energy invested on resources extraction and necessary materials to the final disposal. To do so, it must be investigated all relevant steps of a product/production system life cycle, tracking all activities which emit greenhouse gases, directly or indirectly. This amount of emissions consists in the firm‟s Carbon Footprint. This research purpose is to defend the Carbon Footprint relevance and its adoption viability to be used as an Environmental Indicator on measurement/assessment of CSR. It has been realized a study case on Petrobras‟s seat unity at Natal-Brazil, assessing part of its Carbon Footprint. It has been used the software GEMIS 4.6 to do the emissions quantifying. The items measured were the direct emissions of the own unity vehicles and indirect emissions of offset paper (A4), energy and disposable plastic cups consumed. To 2009, these emissions were 3.811,94 tCO2eq. We may conclude that Carbon Footprint quantification is indispensable to the knowledge of real emissions caused by a productive process existence, must serving as basis to CSR decisions about the environmental changes reversion challenge

Responsabilidade social e competitividade :um estudo sobre a influência de práticas sociais na decisão de escolha de um destino turístico

The work objective was to investigate the influence of social practices social in the choise decision of a tourist destination. For in such a way, a survey with the aid of a questionnaire, was used as being the research instrument. The study used a simple random sample without replacement, due to elements of the population had a equal probability different of zero, to be selected for forming part of the sample. The used collection method of data was personal interview. The data was collected at Augusto Severo International Airport at the moment in which tourists were embarking in return to the residence place or another tourist destination. For determination of sample size, it was considered the tourist who had visited Natal in November and December, 2004, supplied by the Secretariat of Tourism in the RN. The sample for the research was of 403 people. Results showed that the interviewed express the existence of high level of competitiveness in the tourism industry. It was observed that 42.5% of the interviewed believes to exist a very aggressive competition, and 47.5% believed that the competition is aggressive in the tourism industry. 10.4% of the interviewed expressed much interest in knowing about social practices in the tourism industry and 2.8% had not presented any interest in knowing about social practices in the tourism industry. For the interviewed, the travel agency image is a significant item in the choice for a tourist package, because of 35.6% believed that this factor is very important in the choice. 5% of the interviewed only find that little important or that sometimes the travel agency image can be seen as s decisive factor in the tourist package choice

A (não) assunção da responsabilidade enunciativa no gênero acadêmico artigo científico produzido por alunos do curso de Letras

This research is inserted in Textual Analysis of Discourses (from now on, TAD), elaborated by linguist J-M Adam and developed nowadays by scholars from Brazilian textual linguistic. ATD consists of a theoretical and descriptive perspective from Textual Linguistics that is concerned about a theoretical and methodological position which sets Textual Linguistics in the most extensive Discourse Analysis panorama. In this work, on the enunciative level of text we investigate: the enunciative responsibility (ADAM, 2008) in 14 examples of the academic genre paper published in the journal Ao Pé da Letra and written by university students from degree in Language. The research is oriented by the studies about enunciative responsibility by Adam (2008, 2010), Rabatel (2010), Guentchéva (1994), the perspective of discursive heterogeneity by Authier-Revuz (2004). We established as general objective: (1) Analyzing the occurrence of the (not) assumption of enunciative responsibility in the academic genre paper . The analysis followed the qualitative paradigm on an interpretative basis. The conclusions show, therefore, the excerpts of the discursive genre used to present the analysis reveal a particular nature of using the recourse to the discourse of several knowledge sources that many times can (not) be assumed by the enunciator.