O princípio constitucional da redução das desigualdades regionais e os campos maduro-marginais de petróleo: aspectos regulatórios e fiscais

Under the circumstances of the desestatization that penetrate Brazilian economy in the 90‟s, new features in the monopoly of oil by the Union were designed by the constitutional amendment number 9. of 1995. This deep change in the legal regime of oil sector brought the possibility of entrance to small and medium size producers in this industry, especially through the production activities developed in mature and marginal fields of oil, which are located mainly in northeast region of Brazil. Considering that the intervention of state over the economy finds its guidelines and limits in Federal Constitution disposals, the present work investigated in which way states regulation, mainly through taxation rules, has obeyed the constitutional regime in force, and specially, the reduction of regional inequalities principle. By mean, firstly, of an analysis of central concepts (mature fields, marginal fields, small and medium size producers) we observed that the imprecision over the conceptual aspect has constituted an obstacle to a specific states‟ regulation, directed to this newborn class of producers, whose growth has been pursuit by the state. That is verified in the case of concession procedures, and also, concerning the taxation system applied to small and medium size producers. Examining the main constitutional principles related to this universe which are the legality, equality, privileged treatment to small enterprises, contributive capacity, and reduction of regional inequalities we conclude that it is legally possible, a truly specific regulation, including a special taxation regime, to the small and medium size producers whose activities are concentrate over mature-marginal fields, aiming the concretization of the Brazilian state main goals

A Constitucionalidade do decreto de licitações da Petrobrás à luz dos princípios da legalidade e da eficiência

PETROBRAS, a Brazilian oil company, follows principles of public administration and from the Constitutional Amendment 9/95 in Brazil began to compete with other companies with the flexibility of the oil monopoly. In this new model started to use the simplified procedure for bidding so that could compete on equal terms. The ordinance that adopted a simplified procedure for bidding has been the subject of some criticism and lawsuits especially under the Court of Audit and the Supreme Court in Brazil. The analysis of their constitutionality, and the possibility of their use by other group companies is the theme of this work, and for this purpose, permeates through the notions of judicial review in the Brazilian law on the stage of law and economics analysis of the norm, and the principles applicable to PETROBRAS and the devices most frequently asked about the implementation of 2745/98 Decree. For this, the basic issue that should be investigated further is the regulatory power of the Federal Executive and the delegation of powers within the legislature and its conformation to the constitutional regency

Acesso à justiça enquanto direito fundamental: efetivação pela defensoria pública

The Federal Constitution of 1988 is recognized for its enlargement in the face of large amount of provisions that make it up, among which many are fundamental rights. The fundamental rules set up the foundation of a democratic state, however, are the necessary legal mechanisms to be effective, its exercise is not enough merely to state them, but to offer ways for them to stop being just written standard on paper, and come to be viewed and exercised day-to-day. In this sense, access to justice presents itself in our times, as a cornerstone for a just society dictates. In this light, access to justice can be seen as the most fundamental of rights, which translates as instruments able to safeguard the fundamental rights not only against the action/omission violating the state but also the very particular. Furthermore, access to justice within the legal country, is not right for everyone, despite the willingness of the Citizen Charter in its article 5, paragraph LXXIV, ensuring that the State shall provide full and free legal assistance to those in need. More than half of the population lives in poverty and can´t afford to pay legal fees or court costs as well as a bump in their own ignorance of their rights. The judiciary, in their primary function, is in charge of trying to correct the violation of the rights, intending to effect a true distributive justice, serving as a paradigm for the promotion of substantive equality of human beings, however, is difficult and tortuous access Justice for those without financial resources. In this vein, we present the Public Defender, as keeper of the masses in its institutional role, defending a disadvantage, in the words, as a mechanism for effective access to justice, ensuring therefore fundamental rights. Public Defenders arise at the time or much discussion highlights the priority of actual access to justice, custody, therefore, intimate bond with the pursuit of fundamental rights, in which, that advance the broad range of rights, without whom could defend them or guardianship them

Defensoria pública e sua legitimidade à tutela jurídica dos direitos humanos

The realization of human rights is a prerequisite to the development of peoples, this requires legal mechanisms and techniques to its consistent and effective promotion, protection and fulfillment. So, agree that there is an institution or public agency created for the purpose of protecting those who suffer most in the face of human rights violations: the needy. In Brazil, among other institutions and public agencies, the responsibility of the Public Defender to promote the protection of human rights. The constitutional system recognizes the institution in its essence the role of the state court, whose duty is to provide guidance and legal defense of the needy. The legal system as a whole sufraga the relevance of the Ombudsman as a mainspring of human rights. In the prison system, with the ultimate regulatory changes, such as Law 12.313 of 2010 which introduced changes to the Law 7.210 of 1984, the institution must ensure the correct and humane enforcement of sentences and the security measures pertaining to the needy. With the Complementary Law 132 of 2009, to systematize other duties of the Public Defender, highlighting their contribution to the movement of access to justice. Within the OAS, to adopt Resolution 2656, 2011, characterizing, with ruler and compass, the relevance of the Ombudsman access to justice and protection of human rights. In this step, the present study concerns the role of Defender in the legal protection of human rights, through monographic and deductive methods, as there remains a technical and theoretical connection between these two points themed legal phenomenon, since the rights humans, especially after the second half of the twentieth century, form the basis of the legal system of the major Western nations in the world. This led, therefore, the emergence of technical and legal institutions aimed at realizing human rights. This applies to the Defender. Access to justice and public service provision of legal assistance are human rights, therefore, essential to humans and necessary for social inclusion. Countries such as Brazil, marked by social inequality, depend on the structuring of institutions like the Defender, designed to promote citizenship to the Brazilian people

Tributação, finanças públicas e política fiscal: uma análise sob a óptica do direito e economia

In the Brazilian legal scenario, the study of taxation has traditionally been restricted to positivist analysis, concerned with investigating the formal aspects of the tax legal rule. Despite its relevance to the formation of the national doctrine of tax, such formalist tradition limits the discipline, separating it from reality and the socioeconomic context in which the Tax Law is inserted. Thus, the proposal of the dissertation is to examine the fundamentals and nature of taxation and tax legal rules from the perspective of Law and Economics (Economic Analysis of Law). For this purpose, the work initially reconnects the Tax Law and Science of Finance (or Public Finance) and Fiscal Policy, undertaking not only a legal analysis, but also economic and financial analysis of the theme. The Economics of Public Sector (or Modern Public Finance) will contribute to the research through topics such as market failures and economic theory of taxation, which are essential to an economic approach to Tax Law. The core of the work lies in the application of Law and Economics instruments in the study of taxation, analyzing the effects of tax rules on the economic system. Accordingly, the dissertation examines the fundamental assumptions that make up the Economic Analysis of Law (as the concept of economic efficiency and its relation to equity), relating them to the tax phenomenon. Due to the nature of the Brazilian legal system, any worth investigation or approach, including Law and Economics, could not pass off the Constitution. Thus, the constitutional rules will serve as a limit and a prerequisite for the application of Law and Economics on taxation, particularly the rules related to property rights, freedom, equality and legal certainty. The relationship between taxation and market failures receives prominent role, particularly due to its importance to the Law and Economics, as well as to the role that taxation plays in the correction of these failures. In addition to performing a review of taxation under the approach of Economic Analysis of Law, the research also investigates the reality of Brazilian tax system, applying the concepts developed in relevant cases and issues to the national scene, such as the relationship between taxation and development, the compliance costs of taxation, the tax evasion and the tax enforcement procedure. Given the above, it is intended to lay the groundwork for a general theory of Economic Analysis of Tax Law, contextualizing it with the Brazilian tax system

A função social do contrato como concretização de direitos fundamentais nas relações privadas

This dissertation deals with the social function of the contract, based on constitutional principles, especially those relating to fundamental rights. The social function of the contract (general clause) is described in the Civil Code so intentionally generic, no precise criteria to define it. Because of the fluidity of this principle, it is justified its closer study, seeking to assess its various meanings and looking away from the legal uncertainty that an unlimited conceptual vagueness can cause. The social function of the contract arises from a transformation experienced in private law from the inflows received from the Constitutional Law, the result of an evolutionary process by which it became the state structure, leaving the foundations of the classical liberal state and moving toward a vision guided by existential human values that give the keynote of the Welfare State. Arose, then the concern about the effectiveness of fundamental rights in relations between individuals, which is studied from the inapplicability of fundamental rights in private relations (U.S. doctrine of State action), passing to the analysis of the Theory of indirect horizontal effect of fundamental rights (of German creation and majority acceptance), reaching the right horizontal efficacy Theory of fundamental rights, prevailing Brazilian doctrine and jurisprudence. It has also been investigated the foundations of the social contract, pointing out that, apart from the provisions of the constitutional legislation, that base the principle on screen, there have also been noticed foundations in the Federal Constitution, in devices like the art. 1, III, the dignity of the human person is the north of the relationship between contractors. Also art. 3rd, I CF/88 bases the vision of social covenants, equipping it for the implementation of social solidarity, as one of the fundamental objectives of the Republic. Still on art. 170 of the Constitution it is seen as a locus of reasoning in the social function of the contract, the maintenance of the economic order. It is also studied the internal and external aspects of the social function of the contract, being the first part the one that considers the requirement of respect for contractual loyalty, through the objective good faith, as a result of the dignity of the hirer may not be offended by the other through the contract. On the other hand, the external facet of the social function of the contract, in line with the constitutional mandate of solidarity, indicates the need for contractors to respect the rights of society, namely the diffuse, collective and individual third party. In this external appearance, it is also pointed the notion of external credit protection, addressing the duty of society to respect the contract. There has been shown some notions of the social contract in comparative law. Then, there has been investigated the content of principle study, through their interrelationships with other provisions of private and constitutional law, namely equality, objective good faith, private autonomy and dignity of the human person. We study the application of the social contract in contractual networks as well as the guidance of conservation of contracts, especially those denominated long-term captive contracts, considering the theory of substantive due performance, concluding with an analysis of the social contract in code of Consumer Protection

Efetividade dos direitos trabalhistas e os princípios constitucionais concretizadores da proteção laboral

The Brazilian Constitution aims to regularize the broadest possible the fundamental grounded in the value and supreme principle of human dignity, supporting a Democratic State of Law, to essentially give basic rights to all for a dignified existence. As the result of a historical development, fundamental rights incorporated by legal order represents a real reaction against acts that ignored the dignity of each person in one of these scenarios, especially inserted into the labor relationship, the principle of protection comes to balance and compose such relationship between employers and workers, raising this principle as axiological essence of this subject, based especially on the protection and guarantee of fundamental rights of the worker. For this study, was developed a literature research using books, legislation, legal websites and articles related to the subject, in order to analyze the principle of protection insert in the legal order, properly authoritative on the principle of equality, the social value of the work of human dignity to confer protection to the most vulnerable and admittedly weak of the labor relationship in order to serve the specific regulations legal practical tools and effective protection, against the employer hierarchical power and steering that can not change into abuses and attacks on the fundamental rights of the worker. In conclusion, is not enough, recognizing the vulnerability of the worker, it is necessary to carry out protective legal instruments in line with the the human dignity, consectário logical fundamental rights of workers, to be held in a proportional manner and sometimes flexible, depending on the case. Protection has a beginning and end to ensure that the human dignity that must presuppose a working relationship achieved by orderly and normative power of constitutional norms, with the aim of designing that labor is not an end in itself, but a means to the achievement of the economic advancement by promoting social development and providing necessary support for the increasingly marked impairment of fundamental rights of the worker

Nacionalização do trabalho e constituição: análise das regras de nacionalização do trabalho à luz do princípio da isonomia

There is a clear relationship between citizenship and labor market. While foreign nationals are equal in dignity and rights in the laws governing the employment of this labor force. Motivated by reasons of state security or political direction, such laws to a greater or lesser degree, create establish a system of worker protection in the face of the foreign national. These rules have a direct impact on economic regulation, as they can affect the supply of skilled labor or not, articulating with the economic order envisaged by the 1988 Constitution. The Constitution adopts several principles in its economic order, so that the issues involving the rules of the nationalization of all work must be considered in a systematic way, one can not choose a pleasure interpreter. The nationalization of the work rules are not unique to Brazil, similar rules exist in several countries of South America and Africa. In Europe they already existed, but lost out on the basis of treaties setting up the European Union, although other mechanisms are used for the purpose of protecting the citizens of the member states, making policies equal treatment legislation symbolic. The nationalization of the work rules governing the relationship between nationality and the labor market and are in a legal category, which has a function to fulfill in the Brazilian legal system. Not all rules nationalization violate the principle of equality, as it is possible, depending on the circumstance indeed adopt a criterion that implies differentiation between nationals and foreigners. The Constitution has a will arising from its normative force, so that the assumptions it (constitution) used to discriminate may also be possible by ordinary legislation, since the situation is actually justifiably constitutional

Saída compulsória do estrangeiro do território nacional à luz dos direitos humanos: análise de casos

This paper aims to review traditional concepts inherent to the general theory of the state and human rights, relating to the legal situation of foreign, understood as the subject of rights, especially when the is case of compulsory legal imposition of exit from national territory. After the serious violations during the Second World War and the importance acquired by the International Law of Human Rights, values as dignity, justice and equality are enshrined in the legal system and its respect required beyond the boundaries of any country. The creation of an international community, which is governed by rules that its members are subordinated, without distinction, as well as state - based on volunteerism, become inspired by one principled nature of these new concepts required of Global Society, as well as the adoption, influenced by neoconstitutionalism, to the model of State Constitutional rule of law, are opposed to the idea of state sovereignty connected to a superiority, absolute and unlimited power which recognizes no other above it, not even the basic principles or axioms that must govern the relationships internally. So looks for a concept of state that includes all the requirements of a democratic society, that have the people as the power holder, understanding that state element has undergone a relativization, because had to adapt to the contemporary values applicable to the individual, inserting in its concept, the indispensable obligation to protect the inalienable rights of citizens, regardless of with whom he have legal and political bond of nationality. It happens that, to consecrate these privileges to individuals, which, because they contain reference to values with supranational characteristics, are very abstract and are in constant collision course with internal rules, making it difficult to reconcile, it will use hermeneutics of human rights, due mainly to international courts, correlated with constitutional exegesis, in particular, legal principiologia, using, among others, the principles of reasonableness and proportionality, the systematic interpretation of the Constitution and international legal standards. Thus, it seek to enshrine the common foundation of all law , the link between the systems, namely, the dignity of human beings. Finally, it will see if Brazilian jurisdiction, through case studies, is tuned in line with these new paradigms, and in line with the International Bill of Human Rights, the Federal Constitution, the values and principles she hired

A contribuição de Diké na formação do Emílio ou o papel da jurisdição constitucional na concretização do direito social à educação

The fundamental social right to education has a lengthy constitutional argument, having been declared as a right to everyone in the Title dedicated to the fundamental rights and warrants and, later, scrutinized in the Social Order Chapter exclusively devoted to this theme, where specific rights are guaranteed and fundamental duties are imposed to family, society, and state. In that which concerns education, the 1988 Constitution is the result of a historical-normative process which, since the days of the Lusitanian Empire wavering between distinct levels of protection warrants in some way the educational process. Nevertheless, not even the State s oldest commitment to education has been fully achieved, namely, the annihilation of illiteracy. Even as other fundamental social rights, education is inflicted with the lack of effective political will to reach its fulfillment, and this is reflected in the production of doctrine and jurisprudence which reduce the efficacy of these rights. The objective of this work is to analyze what part is to be played by the constitutional jurisdiction in the reversal of this picture in regards to the fulfillment of the fundamental social right to education. Therefore it is indispensable to present a proper conception of constitutional jurisdiction its objectives, boundaries and procedures and that of the social rights in the Brazilian context so as to establish its relationship from the prism of the right to education. The main existing obstacles to the effective action of constitutional jurisdiction on the ground of social rights are identified and then proposals so as to overcome them are presented. The contemplative and constructive importance of education in the shaping of the individual as well as its instrumental relevance to the achievement of the democratic ideal through the means of the shaping of the citizen is taken into account. The historical context which leads to the current Brazilian educational system is analyzed, tracing the normative area and the essential content of the fundamental right to education aiming to delineate parameters for the adequate development of the constitutional jurisdiction in the field. This jurisdiction must be neither larger nor narrower than that which has been determined by the Constitution itself. Its activity has been in turns based on a demagogic rhetoric of those fundamental rights which present a doubtful applicability, or falling short of that which has been established showing an excessive reverence to the constituent powers. It is necessary to establish dogmatic parameters for a good action of this important tool of constitutional democracy, notably in regards to the fundamental social right to education, for the sake of its instrumental role in the achievement of the democratic ideals of liberty and equality

Liberdade de expressão artística: concepções filosóficas, fundamentalidade constitucional e política da pluralidade

The right to artistic expression, freedom granted in the western democratic constitutionalism, is a fundamental right that cyclically, compared to other cohesive rights of expression, has been forgotten and put in an irrelevant juridical-dogmatic position. The first reason for this behaviour that disesteems artistic freedom is the valorisation of rationalism and scientificism in the modern society, subordinating academic researches to utilitarianism, relegating the purpose of feelings and spirituality on men s elocution, therefore, we investigate, guided by philosophy, the attribution of art on human formation, due to its capacity in harmonising reason and emotion. After that, we affirm the fundamental right to artistic expression s autonomy in the 1988 valid constitutional order, after a comparative explanation of freedom in the Fundamental Laws of United States, Portugal, Spain and Germany; and the construction historic-constitutional of the same right in the Brazilian Constitutions. In this desiderate, the theoric mark chosen is the Liberal Theory of the fundamental rights, guiding the exam through jusfundamental dimensions: juridical-subjective and juridical-objective. Whilst the first, classical function of resistance, delimitates the protection area of the artistic expression right from its specific content, titularity and its constitutional and subconstitutional limits, the other one establishes it as cultural good of the Social Order, defining to the State its rendering duties of protection, formation and cultural promotion. We do not admit artistic communication, granted without legal reserve, to be transposed of restrictions that belong to other fundamental rights and, when its exercise collides with another fundamental right or juridical-constitutional good, the justification to a possible state intervention that tangentiates its protection area goes, necessarily, through the perquisition of the artist s animus, the used method, the many viable interpretations and, at last, the correct application of the proportionality criteria. The cultural public politics analysis, nevertheless, observes the pluralism principle of democratic substratum, developer of the cultural dialogue and opposed to patterns determined by the mass cultural industry. All powers are attached, on the scope of its typical attributions, to materialise public politics that have the cultural artistic good as its aim, due to the constant rule contained in §1, art. 5º of the Federal Constitution. However, the access and the incentive laws to culture must be constantly supervised by the constitutional parameter of fundamental right to equality

Contribuição ao estudo da isonomia na tributação sob a perspectiva da ordem econômica

The study aims to investigate the limits of state intervention via induction on Economic Order, especially in cases regarding tax equality, through the analysis of their effects on economic development and on free competition from the perspective of economic efficiency and the Constitution. Thus, the work seeks to demonstrate that the achievement of equality in taxation is important in that it strengthens the economic relations in terms of efficiency, protects competition and fosters economic development to reduce regional and social inequalities and other constitutional desiderata. A dissertation is characterized by interdisciplinarity and was divided into two parts. The first is to discuss the legal meaning of equality from the doctrinal analysis of the principle and the relationship between equality and justice in the economic sense without rejecting its philosophical content. It is noteworthy that hermeneutics and the philosophy of language are useful tools for achieving equality in presenting the pragmatic methodologies applicable to the subject in terms of corrective justice. Based on these general assumptions, is going to study the tax equality and their characteristics, the corollary of the ability to pay and its relation to the economic capacity and the issue of progressivity in taxation as an ideal of distributive justice. The second part concerns the legal foundations of Economic Order and its relation to extrafiscality as a means of economic regulation in order to investigate the efficiency of this induction in order to promote economic development, free competition and tax equality itself to reduce inequalities and distributing wealth. Within this context, we investigated the scope of the constitutional principles of economic order, free enterprise and free competition, and favored differential treatment for small and medium enterprises, the issue of regional development for the reduction of regional and social inequalities, the problem the "fiscal war" and finally the efficiency from the perspective of Economic Analysis of Law

Hermenêutica constitucional e fficácia dos Direitos Sociais

The present research has, as general objective, to seek a constitucional hermeneutics directed toward the improvement of the efficacy of the social rights rules, with the purpose to solve the elapsins problems from the general picture of its inefficiency, which are disposed on the Constitution, in its ample majority, as mere regular norms. Leaving of the premise that no Constitutional norm can be without being materialized and the true development of the State is it the social one (based on the principles of freedom, equality and solidarity), it will be demonstrated that the arguments in favor of the legislative inefficiency configure a true blow on the Democratic State of Brazilian Law. For this, it will be done, preliminarily, a study of the basic rights, legal category where it is found the social rights. To follow, it will be analyzed the hermeneutics of the legal norms, with emphasis on the specifics of the constitutional hermeneutics and its methods of interpretation. Finally, the aspect on the improvement of efficacy and the effectiveness of the social rights will be studied, through a new readind of certain dogmas that still persist in the legal world, being distinguished the institutiones of the reserve of the possible and the existential minimum. Ahead of this, after verifying the new paradigmas of the interpretable activity, will be demonstrated how it is possible to get an upgrade on the effectiveness of the social rights

O direito coletivo prestacional à saúde e o poder judiciário: a concretização do art. 196 da Constituição de 1988 pela via jurisdicional

During the ninth century, owing to the process of industrialization, new social conflicts were showed, forcing the Government not to remain inert. The necessity of answer to these new demands requires from the State some actions that assure the new economic, cultural and social rights, able to exceed the formal equality, according to the principles of redistributive equality and well-being. Among the social rights, the right to health is showed up, which is placed at the Universal Declaration of Human Rights and the International Treaty for the Economic, Social and Cultural Rights, as a necessary term to promote the dignity and the free development of the human personality. Under the Constitutional Law, it is clear that the implementation of the right to health, placed at the 6th article of the Brazilian Constitution, demands a government activity, which usually requires a provision of material goods, depending on budgetary resources. The Legislative and Executive Branches have a very important role in compliance with the constitutional regulations about the satisfactory offer of health care services, besides the correct use of the resources at this area. The adoption of public policies is the way of Government action to the planning and realization of this right. Though, some public policies are usually made apart from the social compromises, to the detriment of the basic social rights. The government has a discretionary competence to manage the health services. That is the reason it is necessary the control of the political choices, through the popular control, the extrajudicial control by the Account Courts, or the judicial review. Owed to the constitutionalization of social rights, the constitutional justice has a very relevant role, concerning to the constitutional jurisdiction, in a way the Judiciary Branch assume your position as a player that transforms the society. On the control of the public health policies, there is a cast of official instruments, judicial or not, to the guarantee of the collective right to the public health services, and to allow the citizens to reach the real implementation of the right to health

Emprego formal na região nordeste brasileira: seus efeitos na inclusão social

This work aims to study the problem of the formal job in the Brazilian Northeast region and its effect in the social inclusion, taking for base the analysis of variables defined in the Atlas of Social Exclusion, which is based on the 2000 Brazilian Census, choosing the county as unit of analysis. As methodological options, an exploratory data analysis was performed, followed by multivariate statistical techniques, such as weighted multiple regression analysis, cluster analysis and exploratory analysis of spatial data. The results pointed out to low rates of formal job for the active age population as well as low indexes of social inclusion in the Northeast region of Brazil. A strong association of the formal job with the indicators of social inclusion under investigation, was evidenced (schooling, inequality, poverty, youth and income form government transfers), as well as a strong association of the formal job with the new index of social inclusion (IIS), modified from the IES. At the Federative Units, in which better levels of formal job had been found, good indexes of social inclusion are also observed. Highlights for the state of the Rio Grande do Norte, with the best conditions of life, and for the states of the Maranhão and Piauí, with the worst conditions. The situation of the Northeast region, facing the indicators under study, is very precarious, claiming for the necessity of emphasizing programs and governmental actions, specially directed to the raise of formal job levels of the region, reflecting, thus, in improvements on the income inequality, as well as in the social inclusion of the population of Northeastern natives.