A cidadania no contexto do estado constitucional democrático de direito brasileiro

The citizenship is a fundamental category to the democratic progress and the development and concretization of human rights, in addition to being one of the essential foundations of democratic contextualized in the rule of law of the Federative Republic of Brazil. That’s exactly why the discussion about its concept and content is a paramount requirement to the understanding and interpretation-application-concretization of the Federal Constitution of 1988, as well as its democracy, since there is no democracy without citizenship. That is why the general objective of the research is to determine the characteristics of the citizenship, relating it to the Law, as well as to discuss (critically) its inclusion in the list of fundamental rights and delimitate the scope of protection and the limits of this right, in the context of Brazilian law post-1988 Constitution. The specific objectives are: a) to analyze the concept of citizenship, its extent and scope, contextualizing it historically; b) to examine the evolution of the legal and regulatory treatment of the citizenship in Brazilian constitutions, focusing on the 1988 Constitution; c) assess whether citizenship can be considered a fundamental right; d) to investigate which implications, theoretical and practical, of assignment fundamentality character to the right to citizenship. This research identifies and deconstructs current conceptual confusions, such as the lack of distinction between citizenship and nationality; citizenship and electoral capacity; citizenship and person. It also helps to identify and oppose the generalizations, as well as the excessively abstract associations which tend to purely metaphysical understandings, fluid and empty of any content. The main virtue, however, is the proposed of understanding of the citizenship as a fundamental right and the examination of the relationship between citizenship and human dignity. In this context, citizenship appears as a corollary of human dignity and it goes beyond. This (human dignity) requires equality, non-arbitraries, non-excessive, disproportionate or unreasonable impositions affecting their freedom rights, and, yet, doesn’t affect a minimum core of possibilities of have to a decent life, in conditions of freedom and self-conformation involved in the necessary consideration of the individual as a subject. All of this requires a decision-making process, molded by the citizenship, which reaches the entire development process of possible state interventions, to ensure the person as a subject, the right holder and the objective point of reference of the juridical relations. Thus, the citizenship represents a substantial and beneficial addition to the human dignity, since the emancipated citizen is a person, formally and materially, qualified, to be able to build their own and collectively organized history, to participate effectively in the making processes decision juridical and social

Assédio moral na administração pública e a responsabilidade civil do estado

The social and economic changes of the last decades have enhanced the dehumanization of labor relations and the deterioration of the work environment, by the adoption of management models that foster competitiveness and maximum productivity, making it susceptible to the practice of workplace bullying. Also called mobbing, bullying can occur through actions, omissions, gestures, words, writings, always with the intention of attacking the self-esteem of the victim and destroy it psychologically. In the public sector, where relations based on hierarchy prevail, and where the functional stability makes it difficult to punish the aggressor, bullying reaches more serious connotations, with severe consequences to the victim. The Federal Constitution of 1988, by inserting the Human Dignity as a fundamental principle of the Republic, the ruler of the entire legal system, sought the enforcement of fundamental rights, through the protection of honor and image of the individual, and ensuring reparation for moral and material damage resulting from its violation. Therefore, easy to conclude that the practice of moral violence violates fundamental rights of individuals, notably the employee's personality rights. This paper therefore seeked to analyze the phenomenon of bullying in the workplace, with emphasis on the harassment practiced in the public sector as well as the possibility of state liability for harassment committed by its agents. From a theoretical and descriptive methodology, this work intended to study the constitutional, infra and international rules that protect workers against this practice, emphasizing on the fundamental rights violated. With this research, it was found that doctrine and jurisprudence converge to the possibility of state objective liability for damage caused by its agents harassers, not forgetting the possibility of regressive action against the responsible agent, as well as its criminal and administrative accountability.

Criminalização do porte de drogas para consumo pessoal: uma perspectiva jurídico-constitucional

This dissertation has the main objective to assess the legal and constitutional legitimacy of the legislative state act that criminalizes the conduct of carrying drugs for own consumption - in the case of Brazil, art. 28 of the Federal Law n.º 11.343 of August 23rd, 2006. Therefore, it is done, initially, a contextualization, pointing the main regulatory frameworks, internal and external, of what is conventionally called prohibition in the matter of drugs, as well as the different species of liberalizing initiatives today on an upward trend in the international scenario. Then analyzes the state intervention in question in the light of references of human dignity, freedom and privacy, emphasizing, in the point, among other contributions, the various precedents of foreign constitutional jurisdiction over the theme. Immediately thereafter, confronts the policy in screen with what is perhaps, these days, the main control mechanism of the restrictive measures of fundamental rights, namely the proportionality test, here represented by classical elements of appropriateness, necessity and proportionality in the strict sense. After that, it examines the criminalization on the agenda before the parameter of equality and the general interests of health and public safety. Based on theory and empirical enrolled in the development, it is concluded, finally, the unconstitutionality of the option of the ordinary legislature to impose criminal penalties on users - problematic or not - of substances or products capable of causing physical or psychological dependence.

Os limites constitucionais ao exercício de direito de patente e seus reflexos na indústria do petróleo, gás natural e biocombustíveis

This dissertation deals with the constitutional limits on the exercise of patent rights and its effects on the oil, natural gas and biofuels. Held with the support of ANP / PETROBRAS, It seeks to show how the law will limit the exercise of industrial property, based on a reinterpretation of private law by the constitutional development perspective . Today it is a fact that Petrobras, a Brazilian joint venture, has the latest technology in various sectors of the oil industry, and is one of the highest investments in developing new technologies. The overall objective of this thesis is to establish the relationship between the public interest of the Petroleum Industry, Natural Gas and Biofuels and constitutional limits to the free exercise of patent rights, then confirm or refute our hypothesis that Article 71 on Industrial Property Law is contrary to the existing objectives in Article 3 of the Constitution of the Federative Republic of Brazil. The research aims to examine the relevant aspects of the legal nature attributed to IPGN constitutionally confronting the constitutional limits on the free exercise of patent rights, with the purpose to outline the state of the performance limits in the regulation of the economy, in particular the application of feasibility limitations on the right of property in favor of national interest on the strategic energy industry. The aim is to confront the fundamental rights to property and economic development, against the public interest, limiting these first. As to the objectives, the research will be theoretical and descriptive and harvest of industrial property, respect the possible impact of regulatory standards and limiting the right of ownership in the oil industry. To establish how the state will mitigate the intellectual property right, we discuss, at first, a definition of public interest from the general theory of state and sovereign character in order to establish a new concept of national interest and popular interest, which will in turn the definition of our concept of public interest. In the second phase, will be addressed the issue of industrial property rights and how to will be free exercise thereof, in the constitutional sphere, infra, and demonstrating the use of industrial property rights with examples of market and IPGN . After situating the industrial property rights in the constitution and national legislation, establish their relationship with the national and regional development, will be addressed in this chapter in particular the patent law, as most usual form of intellectual property protection in IPGN. Used a study highlighting the number of patents in the area of the analyzed industry, demonstrating with hard data the importance of a sector for industrial development. The relationship between the social function of intellectual property and the constitutional objective of development was characterized to demonstrate the strategic nature of oil to Brazil in the national and international scene, and put into question the hypothesis of the research which provides that even with large investments the lack of legal certainty in the sector turns out not to have a considerable volume of investment as it could.

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.

Aplicação da democracia deliberativa como mecanismo de efetivação do direito fundamental a uma administração pública proba

This study aims to analyze citizen participation in state policy decisions, as an essential element of legitimacy in the branches of government, especially in the sphere of the Executive, in the context of deliberative democracy. But, this study still has the desideratum to understand the citizen's role in public life, especially in the sphere of the Executive Branch, in order to effect the Fundamental Right to Public Administration proba, efficient and honest. Thus, to achieve this mister, the proposal is to expose the pesamento the classic contractualist, Thomas Hobbes, John Locke and Rousseau about the legitimacy of governments, through the statutes, and the question of the general will and majority rule as well how to present the comments of Thomas Jefferson on popular sovereignty and dialogical citizen participation in matters of local interest. After, it will be studied the theories of Fundamental Rights in order to demonstrate the need for the Civil Service should be veiled in a more specific custody rights, given the deep crisis in the Public Administrative practice due, especially, corruption. On the other side, the fundamentality of management also covers the aspect of the development of cities, which decisively affects the development of man, which, to join a deliberative governance program needs to be politicized, adopting full participation, dialogue, as duty citizen. Furthermore, taking as most heart, will be presented the doctrine of Jürgen Habermas, whose Discourse Theory element is to be followed for the implementation of a This study aims to analyze citizen participation in state policy decisions, as an essential element of legitimacy in the branches of the government, especially in the sphere of the Executive, in the context of deliberative democracy. But, this study also has the desideratum to understand the citizen's role in public life, especially in the sphere of the Executive Branch, in order to actualize the Fundamental Right to a just, efficient and honest Public Administration. Thus, to achieve this necessity, the proposal is to expose the thought of the classic contractualist thinkers, Thomas Hobbes, John Locke and Rousseau about the legitimacy of governments, through the statutes, and the question of the general will and majority rule as well as how to present the comments of Thomas Jefferson on popular sovereignty and dialogical citizen participation in matters of local interest. Later on, the theories of Fundamental Rights will be studied in order to demonstrate that the need for the Civil Service should be veiled in a more specific right custody, given the deep crisis in the Public Administrative practice due to, especially, the corruption. On the other hand, the fundamentality of management also covers the aspect of the development of cities, which decisively affects the development of man, who, to join a deliberative governance program, needs to be politicized, adopting full participation and dialogue as a citizen responsibility. Furthermore, taking as the major heart, it will be presented the doctrine of Jürgen Habermas whose Discourse Theory element is to be followed for the implementation of a broad deliberative and emancipatory democracy, with effective citizen participation. It will also be considered the Condorcet Constitution Project as a comparative link in the linking of the public deliberative will, and the Central Power, in the face of the Theory of “Sluice” Habermas. The proposal, based on communicative action, must allow a continuous flux and influx process of social interests towards the exercise of administrative power. The dialogical deal, brought to the center of the decisions, will allow discussions in the public scope, and may contribute to the legitimacy of government actions, inasmuch as it creates the feeling of politicization demanded by the man in a democratic state.

Plano de desenvolvimento sustentável e articulação de políticas públicas: o controle de políticas ambientais pelo poder judiciário

The right to the preservation of a healthy environment is perceived as a Fundamental Right, inserted in the National Constitution and referring to present and future generations. The preservation of the environment is directly connected to the right to Health and Human Dignity and, therefore, must be treated as a personal right, unavailable, claiming for a positive response from the Brazilian State, through the development of related public policies, control of potentially harmful economic activities, with special focus on the principles of precaution and solidarity. The Brazilian judiciary must thus be attentive to the guardianship of the Fundamental Right. The judiciary control over the execution of public policies is based on obeying the principle of the separation, independence and harmony between the Powers, however it should never deviate from the constitutional obligation of caring for the effectivation of the rights and guarantees within the Magna Carta. In the balance between the principle of human dignity, from which springs the right to a healthy environment and the principle of separation of powers, the former should prevail, maintaining the latter to a core minimum.

A responsabilidade civil extracontratual do estado na prestação de serviços públicos de saúde

This study aims to examine the Brazilian legal model for the non-contractual liability of the state in providing public health services, from the perspective of threedimensional theory of law. Up based on bibliographical and documentary research, with emphasis on legislation, doctrine and Brazilian jurisprudence, the following conclusions were reached. The right to health is typified in the Constitution as a social fundamental right, and understands the pretension to obtain from the State, the supply of goods or the provision of services that reduce the risk of disease and other health problems; or promote, protect and recover the physical and mental well-being. Once violated the fundamental right to health, provides the managed, among other fundamental guarantees, the non-contractual liability of the state. The provision of public services by the state can be made directly through the Direct or Indirect Public Administration, or by recourse to private entities. In any case, the provision of public health services is entirely subordinate to the principles of administrative law and should be fully funded by tax revenues. As the provision of public health services is part of the administrative activity of the State, there is no way to exclude the application of the guarantee of non-contractual liability of the state in the face of the damage suffered by administered as users of these services. Therefore, it applies the theory of administrative risk, even in the event of harmful and illegal state failure.

Justiça juvenil: teoria e prática no sistema socioeducativo

Em um momento histórico de violações e ameaças aos direitos fundamentais de crianças e adolescentes, é preciso somar esforços na luta pela transformação das políticas voltadas para esses sujeitos. A ideologia que fundamenta a criminalização de adolescentes pobres e da periferia é a mesma que impõe a redução da idade penal e que autoriza e legitima as violências institucionais cometidas no sistema socioeducativo. Esta obra vem apresentar fundamentos teóricos e experiências práticas com vistas à desconstrução desses processos ideológicos e à defesa intransigente da proteção integral de crianças e adolescentes.

Comunidades tradicionais em áreas protegidas: convergências e lacunas da Política Urbana e Ambiental na Reserva de Desenvolvimento Sustentável Estadual Ponta do Tubarão/RN

This work presents a reflection on possibilities and boundaries of consolidation and expansion of human settlements characterized as traditional communities that are located within protected areas, using as study reference the State Sustainable Development Reserve Ponta do Tubarão, at Rio Grande do Norte state. The main topics highlight the conflict between the right to housing and the prevalence of fundamental rights of traditional populations, opposed to the diffuse right to environment, according to the regulatory framework of the Brazilian Urban and Environmental Policies. At the same time that these settlements, historically built, are substantiated by the principles of recognition of rights to traditional populations, they are in a condition of complexity to the resolution of conflicts in its urban dimension and lead to an impairment of natural sites. This work questions how the instruments of land use and occupation are defined and relate to environmental planning, especially considering that the settlements are located in Permanent Preservation Areas (APP). It aims to further the discussion of the urban dimension in settlements, characterizing its formation and growth process, to identify the gaps and convergences between the Urban and Environmental Policy, under the foundations of a socio-environmental approach. The results spotlights the conflicts between occupation and natural areas, inferring that the definition of Urban Policies instruments and its integration with Environmental Policies instruments account for essential and priority actions to the achievement to the rights to a sustainable city, as determined in the Cities Statute and environmental protection goals, defined for the Conservation Units

Violência e luta por direitos no capitalismo contemporâneo: crítica à configuração do atendimento às mulheres no Rio Grande do Norte

This research analyzes the Rio Grande do Norte care services to women who face violence in the context of contemporary capitalism. To do so, we situate the patriarchy in the set of current social relations and its relationship with the corporate determinations in everyday life. The new functions of the Patriarchy in the capital sociability permeates the lives of individuals and particularizes the relationships of violence which affects women, requiring, in the immediate level, policy-making to face them. The research found an arsenal of contradictory possibilities and limitations in dealing with violence. In this process, forms of struggle and resistance predominate, which appear as possibilities and limits were identified relate to the socio-historical context of regression of the rights, historical moment in which increase the objective difficulties in everyday life to ensure the legal achievements. It is worth to emphasize the achievements and contradictions that characterize the struggle process for rights, linking services to women to the social policies and to the limits they face in opposition to the aims of the State to meet the mandatory requirements of capital, reducing its role as the main guarantor of policies and rights. In this sense, the trajectory of the achievements that have referred to the proclamation of a specific law to deal with combat violence against women, the Maria da Penha Law - 11.340/06, which provides an integrated set of measures that, if implemented, would allow the women protection from relations of violence they experience. We identified in Rio Grande do Norte precarious services that are essential to achieve the Maria da Penha Law. This situation requires a feminist organization to claim the rights that enable women to see themselves as people with rights in the process of collective struggle. This is the historical need for continuity of struggles that accumulate policies for the existence of a new model of social relations of gender. One of the possibilities that are presented in the current context is the impact on the public budget in order to ensure compliance with the budget for public policies for women - woman budget. In this perspective, feminist segments in national and state level have been organized to understand the functioning and monitoring of social policies. This is a condition and prerequisite for ensuring policies to ensure basic rights and the violence combat , which still requires an integrated set of services. The survey results allow us to consider that the struggle for rights is necessary at this historical moment, however it is not sufficient in human emancipation, which requires new forms of social relations that determine substantive equality between men and women. Thus, the feminist movement faces the challenge to organize and strengthen itself in daily life, in order to execute a project that changes the meaning of women's rights, articulated to a corporate project which wants other command in the set of social relations . This study emphasizes the need for a more and more organic connection between feminism and social struggles, to ensure the inclusion of women in anti-capitalist struggle

Parcerias municipais com o terceiro setor: o caso do conselho municipal dos direitos da criança e do adolescente de Natal

The relationship between the State and the non-governmental organizations (NGOs) needs to be analyzed and debated by the objective to extinguish or to reduce the existent failures in this partnership in order that the whole society may benefit from it. To understand how the partnership between the public and NGOs work is fundamental. The present study searches to contribute to a better understanding of this matter. With this aim, the research focused the partnership formed between Natal Child and Adolescent Council (COMDICA) and NGOs which were selected by public notice in 2007. Theoretical references were based on the Continuum of Collaboration proposed by Austin (2001) that serves to differentiate the degree and the mode of interaction between the two organizations. It was observed that in some points there is a lack in the interaction between COMDICA and the NGOs. The frequent change of the government counselors makes difficult a more intense involvement and partnership awareness with the NGOs. The NGOs members need to be more involved with the activities of COMDICA and search for a larger participation in the assemblies, on the discussions and on the intrinsic council actions. The relationship must also be rethought, since that the partnership must not be limited to financial resources support. The channels of communication must be improved and become more frequent. The evaluation and monitoring of social projects are poor and own methodologies need to be elaborated. Therefore, it is necessary to make some adjustments in this relationship involving not only the partnerships made by the selected ONGs, but also all those who assist the child and the adolescent. A closer relation makes possible a greater effectiveness of the public policies on one side and on the other side improves the performance of the COMDICA and the NGOs

O papel sócio empreendedor da ONG Sodireitos em defesa dos direitos sexuais e migratórios na Amazônia

This paper presents a case study from the Society for the Defense of Sexual and Migrate Rivers Amazônia - Sodireitos, whose central problem is to understand how it the works the social entrepreneur of the NGO Sodireitos in defense of sexual rights and migrate rivers in Amazônia. The central objective is to analyze the practices Social Entrepreneurship at the NGO Sodireitos on sexual rights and migrate rivers. The method adopted examined the entire creation process at the NGO the present day. Primary and secondary dates were used allowing the viewing of the dynamic intervention Social Sodireitos practiced by the fields of human rights and migrate rivers. Categories of analyses were given, and possible perceive in works of the strong Sodireitos flags that converge to social entrepreneurship as a guideline in the search for a model of human development, social and mainstay vel.

O papel sócio empreendedor da ONG sodireitos em defesa dos direitos sexuais e migratórios na amazônia

This paper presents a case study from the Society for the Defense of Sexual and Migrate Rivers Amazônia - Sodireitos, whose central problem is to understand how it the works the social entrepreneur of the NGO Sodireitos in defense of sexual rights and migrate rivers in Amazônia. The central objective is to analyze the practices Social Entrepreneurship at the NGO Sodireitos on sexual rights and migrate rivers. The method adopted examined the entire creation process at the NGO the present day. Primary and secondary dates were used allowing the viewing of the dinamic intervention Social Sodireitos practiced by the fields of human rights and migrate rivers. Categories of analyses were given, and possible perceive in works of the strong Sodireitos flags that converge to social entrepreneurship as a guideline in the search for a model of human development, social and mainstay vel

Dos direitos da personalidade e a lei de doação de órgãos: o que há para cartografar?

This study aimed at examining the representation and the level of knowledge as well as getting acquainted whether there had been significant divergence among three social groups of 3rd year Law students, 7th period Medical students at UFPB and a group of people from the Catholic Church in vila dos pescadores in João Pessoa - about organ donation, transplant law and ethical issues that raise questions. In order to accomplish the qualitative analysis, Bardin´s content analysis technique was applied in conjunction with the Chisquare test which was applied with significance level of 5% to quantitative data. The data revealed that most informants agree with organ donation, Although they are not acquainted with the law of transplants, and with the lack of confidence in the single list of recipients. The problem is that there is an encouragement to trades with organs and the possibility of any person legally authorized to donate organs in life. The statistically significant difference was observed in only two questions, ie, in response to the confidence in the diagnosis of brain death: 64% of 7th period Medical students at UFPB trust this diagnosis versus 12% of the evangelizing group of vila dos pescadores. The other difference refers to the answer about the confidence in the single list of recipients: 36% of the 7th period Medical students of UFPB said to trust the list versus 12% of the 3rd law students of UFPB. This is was a multidisciplinary study with Involvement of lawyers and doctors