A interpretação constitucional dos princípios da afetividade e solidariedade familiar pelos tribunais superiores brasileiros

The Brazilian juridical ordain has suffered several transformations on Family Law as of the 1988 Federal Constitution, which incorporated the changes in socio-cultural values and behaviors that appeared in the post-modern Brazilian society, with the repersonalization of the family, beginning with the principles of human dignity, affectivity and familiar solidarity; occurring an enlargement of the concept of family, increasing the relevance of socioaffectivity and eudaimonia. The general purpose of this dissertation is to analyze the constitutional interpretations of paradigmatic cases of the Brazilian Superior Courts checking the conditions and behaviors required to achieve the principles of affectivity and familiar solidarity. To do so, uses an exploratory and descriptive research trough books, scientific papers, jurisprudence, monographs and consult to specialized magazines to identify the reasons and specific purposes of the principles of affectivity and family solidarity within the constitutional norms, systematizing the primary meaning of these principles, then to observe the trial of patriotic courts, the criteria and standards of behavior used in their application. The analysis of recent decisions of the Supreme Federal Court and the Superior Court of Justice on the topic of the familiar relations, utilizing the new interpretative approach to the law that considers man as an ontological being of language, demonstrate that the affectivity and familiar solidarity are constitutional principles concretized in decisions, that don’t affect the principle of protection of the juridical security, that is, don’t cause uncertainty despite the incipient specification of criteria to its use

A crise de legitimidade na democracia representativa e o desatendimento aos direitos fundamentais: um enfoque participativo-educacional

This study aims to bring reflection on the legitimacy crisis of the Brazilian representative democracy, which results in non-attendance of fundamental rights, regarding legal and social facts in light of the existing constitutional order and seeking solutions in more democratic procedures and in a more humane, critical, democratic and collaborative education. It has been an issue for some time the understanding that the authorities do not meet the basic needs of Brazilian citizens - the only way to make them autonomous and sufficiently able to conduct their lives in a competitive and globalized labor market. Such situation only worsened - as illustrated by the social movements in mid-2013 - when people took to the streets, showing a noticeable dissatisfaction with public services in general, and some other groups presenting specific complaints in those events. To find solutions or at least suggestions for the reflection of the problem found, a current approach to public authorities was necessary attempting to reveal how the constitutional order authorizes their operation and how - in fact - they act. In this endeavour, the legitimacy of power was discussed, involving the analysis of its origin, to whom it belongs and the legitimacy of deficit situations, concluding that it is only justified as it gets more democratic influence, with greater participation of people in its deliberations and decisions, with its plurality and complexity. Research carried out by official institutions was necessary to have evidence of the low level of social development of the country and the nonattendance of minimum basic rights, as well as exposure to various acts and omissions which show that all public authorities do not legitimately represent the people's interests. The competence of the Supreme Court to establish the broader scope of the remuneration policy in the public service received proper attention, presenting itself as an effective means to promote the reduction of the remuneration and structural inequality in public service and contributing to better care of fundamental rights. Also, considerations were made about the Decree 8243/2014, which established the National Policy for Social Participation (NPSP) and the National System of Social Participation (NSSP) and took other measures with the suggestion of its expansion into the legislative and judiciary powers as a way to legitimize the Brazilian democracy, considering its current stage. In conclusion, it is presented the idea expressed by the most influential and modern pedagogical trends for the creation of a participatory, solidary, non-hierarchical and critical culture since the childhood stage. This idea focuses on the resolution of questions addressed to the common good, which considers the complexity and the existing pluralism in society with a view to constant knowledge update. Knowledge update is in turn dynamic and requires such action, instilling - for the future generations - the idea that the creation of a more participatory and collaborative democracy is needed to reduce social inequality as a way to legitimize and promote social welfare, with the implementation of a policy devoted to meet the minimum fundamental rights to ensure dignity to the population.

O direito fundamental à igualdade no contexto da identidade sexual no Brasil: um estudo da situação jurídico-constitucional com ênfase no exame da suposta inconstitucionalidade por omissão do legislador civil

This dissertation analyses the Brazilian Supreme Court’s judgement in the Non-compliance Action of the Fundamental Precept 132/RJ and in the Direct Action of Unconstitutionality 4277/DF, which created in the country the same-sex civil union. In This decision, the STF interpreted according to the constitution Article 1.723 of the Civil Code, invoking several fundamentals reaffirmed in the Constitution. From all these laws invoked by the Supreme Court to support the pretorian creation, the content of consitutional Law regarding equality is the only that corresponds, and it is sufficient to evidence the necessity of the creation, by legislator, of the institute for civil rights, since the Constitution forbids distinctions that is not expressly provided for in the Constitution (Art. 3º, IV, of Federal Constitution). In this way, Article 226, § 3º is not an exception capable of satisfying the condition of the consitutional foresight because although it protect, according its content only the civil union “between the man and the woman”, it is not able to forbid the creation, by legislator, of another kinds of families, including the same-sex civil union. As such, the reasoning, now legitimate according to the legislator, is not support the creation of institute by Constitutional Court, because the Court may enforce the Law, interpreting in the purviews allowed by the legal text and its constitutionality. In regard to the civil union of individuos of the same sex, the Court could not deduce that such union was implied by Law, like the interpretation according to the Constitution given by judges, on grounds of semantic purviews of the words man and woman, existents in both articles. The Court could not created it either, exceeding the legal system role. So, upon the institute creation, the STF, exceeded two limits: the interpretation and Law enforcement.

Os limites do poder regulamentar do Conselho Nacional de Justiça no contexto do Estado constitucional brasileiro

The creation of the National Council of Justice (CNJ) through the Constitutional Amendment nº 45/2004, derived from countless gaps in Brazilian law, mainly relating to procedural delays, ineffectiveness of judicial decisions, and the lack of mechanisms that enable, effectively, disciplinary accountability of judges. The council is constitutionally designed as a member of the Judiciary, which has administrative nature and laid assignments in art. 103-B, § 4 of the current Constitution, among which is to edit regulations to instrument its performance. However, since it came into force, the amendment raised extensive discussions, linked in particular to the constitutionality of the CNJ, which was made through the direct action of unconstitutionality nº 3367, against the alleged violation of the principles of separation of powers and federative form, as well as the limits of its regulatory powers, as has fanned out in ADI nº 3823/ DF, this one dealing on Resolution nº 07, which regulates the seal of nepotism practice in the judiciary. However, despite the Supreme Court has already pronounced on the matter, recognizing the constitutionality of the council, as well as the resolution already said, the debate is in a state of latency, and may erupt again with each new manifestation of regulatory CNJ, given the lack of agreement between doctrine and jurisprudence around the constitutional treatment of its regulatory powers. In this context undeniably reflection on the definition of the regulatory power of the CNJ, presents itself as extremely relevant, and current, in particular in the ambience of the Constitutional Rule of Law, where he strives for legal certainty and consolidation of regulatory institutions. So that it could reach a satisfactory result, skilled at resolving the problems raised, the present study analyzed the reasons that gave rise to the creation of the CNJ, demonstrating their indispensability, but also sought to characterize the status of their administrative and constitutional body, noting finally, the compatibility of its regulatory activities to constitutional principles. From this perspective, we adopted the deductive method and carried out research and bibliographic nature documentary.

A democracia participativa na jurisdição constitucional brasileira: o amicus curiae enquanto mediador democrático no controle concentrado de constitucionalidade no Supremo Tribunal Federal

This master thesis aims to research the tension established between the judicial review and democratic theory which was always present in the constitutional doctrine of separation of powers. In this regard, the expansion of the Brazilian constitutional jurisdiction checked after the occurrence of the Federal Constitution of 1988 and the inertia of the Legislature in disciplinary relevant legal aspects of Brazilian society contributed to a hyperactivity of the Supreme Court. However, in a complex society of context, as is the Brazilian society, there are contained demands and political controversies that hardly would be well represented or resolved through the action of the Court of ministers at the expense of other government bodies. Among the supremacy of Parliament and the legitimacy deficit of these magistrates, is the constitutional text and the social fabric that makes this legal status of the political. Participatory democracy established by the guidelines of the Federal Constitution requires this perspective when the Supreme Court acting in place of concentrated constitutionality control. In a plural society, there is no reason to get rid of state decision moments popular participation. Lack the Supreme Court, this time, the democratizing perception that the institute brings to the interior of the Court, as state determination of space in which to come together and meet the aspirations of society and state claims. The dissertation investigates thus the possibility of amicus curiae Institute serve as a mediator of the democratic debate, to assist the Supreme Court in the preparation of the decision is, historically, that which is of greater legitimacy, from the perspective of a theory participatory democracy. Analyzes, likewise, the unfolding of abstract judicial review in the context of Brazilian law. Proposes, incidentally, a rereading of the separation of powers, with the call for the Judiciary be careful not to become the protagonist of national political decisions. It maintains, finally, that procedural opening the interpreters of the constitution, through the amicus curiae Institute, shows up as able to decrease the legitimacy deficit in the performance of the Brazilian Supreme Court.