Ne bis in idem: limites jurídico-constitucionais à persecução penal

This legal research aims to demonstrate the prohibition in the Brazilian criminal system of a multiple imputation for the same fact in a simultaneous or successive way. For that it is developed a different idea of the subject. Through comparative, eletronic and bibliographical researches, the dissertation was accomplished in a way to establish the content of the foundations of the criminal procedural emphasizing as fundamental premise the values of the Constitution. In the first section it was demonstrated the limits of the theme and the objective of the research. After that, it was analyzed the basic function of the criminal suit which has the important mission of limiting state's punitive power. In the same way, the criminal procedure corresponds to a warranty of the citizens' freedom. In the same section, it is shown how it is possible to abandon the myth of the real truth in the criminal law system. In the third section of the research, there were pointed elements and definitions about the cognition object, specially the litigious object or "thema decidendum", and also the peculiarities of the judged cases. In the fourth section the subject about origins and evolution of the criminal procedure and its objectives in the legal system is developed to demonstrate its perspectives. Some aspects of the identity's concept of the presupposition of the facts are as well demonstrated in order to relate the theme to the prohibition of multiple imputation. There are also considerations about some other important aspects as the incidence of the legal rules and the possible change on the elements of the penal type. There are several comments about legal procedural in other legal systems comparing them to Brazilian's most elevated Courts. In the end it was systematized the limits to criminal imputation, emphasizing the defende's right as a foundation of the legal system. Is was registered that the ius persequendi can be exercised once

Adam Smith visto por Roberto Campos: a (re)criação do mito e as necessidades do capitalismo

This work aims at analyzing how Adam Smith, one of the founders of the liberal regime was seen by Roberto Campos, one of the patriarchs of Brazilian liberalism. In this sense, it will be shown how and why the legacy of Scotland was used to legitimize the new pattern of accumulation necessary to capitalism from the second half of the twentieth century on. So, it is the intention to make explicit that the changes in Campos discursive form are consistent with the requirements of capitalism in crisis and were fundamental in the creation of another common sense. To achieve these goals it will be assessed in what way the liberal rhetoric of the Brazilian, harmonized with foreign authors with the same vision, has become an important weapon to transform Smith into a myth in contrast to the political and economic criteria advocated by the same, but valuable to what Roberto Campos intended

Da proteção à precarização um estudo do fenômeno jurídico trabalhista no contexto das transformações do capitalismo

This research aims to investigate the effectiveness of the legal labor phenomenon in contemporary capitalism as rectifier element of the contradictions between capital and labor. From the analysis of legislative developments - state and business - and court decisions related to the category of freight transport is expected to determine the protectionist stiffness proclaimed by the institutional structure of labor in Brazil, considered by the hegemonic discourse as political-economic factor that prevents growth. It is intended to unravel the relationships between political and civil society, studying the internal contradictions and ideological influence among these spaces, with theoretical support in Marx and Gramsci. The function of this research is to test the premise that the protectionist discourse is a rational action of capitalism and the organic intellectuals of political society in order to achieve hegemony and hide the real contradictions between capital and labor, in addition to also assist in the discussion on deregulation and easing in Brazil. The analysis points to the confirmation of our premise, since the evolution of the legal phenomenon in the transport sector was charging toward the neoliberal project

Lévi-Strauss Mitológicas: Mito e música entre o largo e o prestíssimo

This study was elaborated based on our research of the work Mithologiques by the anthropologist Claude Lévi-Strauss (1908-2009), which affirms that languages, indigenous myths and music are related. He proposes that the understanding of myths occurs in a similar manner as with an orchestral score. In the course of his tetralogy we investigated the musical terms used in the analysis and in the division of the chapters, especially in the first volume of his work. Several compositional procedures and forms are named. Composers in pairs are categorized: Sebastian Bach for the code, Ludwig van Beethoven for the message, and Richard Wagner for the myths. In this deduction, we structured in parts: theme and variations, sonata and fugue with the aforementioned composers. Within the greatness of anthropological study, from among over 800 myths, we selected the first five of the indigenous tribe Bororo to discuss within the Theme and Variation segment. In the Sonata part there are two myths with the same theme: The wife of the jaguar which relates to the compositional structure, and four myths about The origin of women. Finally, in the segment related to the Fugue, we collected four myths that address The shortness of life. Honoring the many terms expressed in opposition, contrast, or symmetry under consideration in Levi-Strauss work, we entitled this thesis emphasizing the migration between the tempos Largo and Prestíssimo as these are oppositional presentations in music. Fifteen musical myths accompany the work supported by selected narratives. In light of this we questioned, we questioned: how are incest, murder and other events part of a society that elevates nature as an extension of life itself? And how did Lévi-Strauss think that anthropology harmonized with music? In the preparation of this study, philosophers like Peter Sloterdijk discuss the circular territory of Mythology

Análise jurídico-constitucional do fomento aos campos maduros de produção de petróleo no Brasil

The oil activities in Brazil had been started in an intensive way in the end of the 30 s and in the beginning of the 40 s. Many of the brazilians fields discovered in the past are nowadays in decline. They are called ―mature fields‖. These fields, because of the decline situation that characterizes them, are not interesting for the majors. The majors want the big fields and big productions. On the other hand, they could be interesting for the small and medium enterprises. The mature oil fields are instruments of development, they have oil and the oil production is an activity connected with many social and economics benefits: jobs, taxes, royalties, etc. The Brazilian State, in this context, needs to realize actions to promote the activities in the mature oil fields, especially with the work of the small and mediums enterprises. Many of the onshore brazilian mature fields are located at the Northeast, a region matched by many social and economic problems. The activities in the mature fields of the Northeast Region could solve some of its problems. The present research analyses the mature oil fields and its situations in Brazil, making criticisms and suggestions. The methodology adopted is theoretical and descriptive, with literature review, case law and legislation (Constituição Federal de 1988, ―Law of the Oil‖). This research examines the following points: mature fields rounds and its documents, name and definition of the mature fields, definition of small and medium enterprises, environmental aspects, concentration of certain activities of the sector and the royalties

A legitimidade da jurisdição de primeiro grau na concretização dos direitos fundamentais: proposta de um novo modelo jurídico-administrativo para o segundo grau de jurisdição

The current study is about the legitimacy of lower court jurisdiction as a way of exercising basic legal rights, proposing, therefore, a new legal-administrative model for appellate court. In order to achieve that, a demonstration of the importance of basic legal rights in the Brazilian legal system and an open interpretation in light of the Constitution, as a way to affirm said rights, among which are accessibility to the justice system and proper legal protection, is required. As a result, the legitimacy to access the legal system resides in the Constitution, where the interpreter should seek its basic principles to achieve basic legal rights. It is observed that the lack of credibility regarding lower court decisions comes from the dogmatic view of truth born from power, and therefore, that the truth resides in decisions from appellate court and not from lower court judges. A lower court judge holds a privileged position in providing basic legal rights for citizens, considering his close contact to the parties, the facts, and the evidences brought forth. Class action suit is presented as an important instrument able to lead the lower court judge to provide basic legal rights. Small Claims Courts may be used as paradigm to the creation of Appellate State Courts formed by lower court judges, reserving to higher jurisdiction courts and Federal Circuit Courts, the decisions of original competency and the management and institutional representation of the judiciary system. Instilling an internal democratization of the judiciary is also required, which means the participation of lower court judges in electing their peers to chief positions in the court system, as well as establishing a limited mandate to higher court judges.

Direito fundamental ao tempo razoável do processo judicial: limites e possibilidades de concretização no ordenamento jurídico pátrio

This dissertation aims to address the limits and possibilities of realizing the fundamental right to reasonable time of the Brazilian legal system process. From this perspective, we analyze a reasonable time concept for the process, consistent with the civil homeland process; the relationship between efficiency, effectiveness, legal security and reasonable time of adjudication; a formal recognition of the fundamental right to reasonable time of the procedure in the Constitution of 1988; and the immediate applicability of this fundamental right. As indicated, the crisis of the Judiciary and procedural delay are problems directly related to the limits and possibilities of realization of the fundamental right under study. Moreover, we also present some mechanisms that can be used to overcome these problems. The subject was developed based on constitutional interpretation of fundamental rights, an approach that will always have this concern to be based on a methodology which includes the normative and empirical-dogmatic fields, realizing the fundamental right to reasonable time of the process. We adopted as methodological approach the study of this issue in judicial aspect, more specifically in the field of civil procedure. Finally, we weave through a critical and analytical view, our conclusions, which demonstrate the possibilities of overcoming the limits imposed to immediate implementation of the fundamental right to reasonable time of the process in our legal system

A investigação criminal e a vedação ao anonimato no sistema jurídico brasileiro

The thesis, prepared with basis on deductive reasoning (through the utilization of general concepts of the fundamental rights theory) and on inductive logic (by means of the consideration of particular situations in which the theme has been approached) deals with the criminal investigation and the prohibition of anonymity in the Brazilian law system. The state criminal investigation activity presents not only a substantial constitutional basis, due to the objective dimension of fundamental rights (which imposes an obligation to protect these essential values), but also a formal constitutional basis, arising from the administrative principles of rule of law, morality and efficiency, referred to in article 37 of the Constitution. The criminal investigation, however, is not an unlimited pursuit, being restrained by the duty to consider fundamental rights that oppose to its realization. One of the limits of the state investigation activity, in the Brazilian law system, is the prohibition of anonymity, referred to in article 5°, IV, of the Constitution. This prohibition is a direct constitutional restriction to the freedom of expression that aims to ensure the credibility of the diffusion of ideas and prevent the abusive exercise of this fundamental right, which could harm both persons and the state, with no possibility of punishment to the offending party. Generally, based on this prohibition, it is affirmed that a criminal investigation cannot begin and progress founded on anonymous communication of crimes. Informations about crimes to the investigative authorities require the correct identification of the stakeholders. Therefore, it is sustained that the prohibition of anonymity also comprehends the prohibition of utilization of pseudonyms and heteronyms. The main purpose of this essay is to recognize the limits and possibilities in starting and conducting criminal investigations based on communication of crimes made by unidentified persons, behind the veil of anonymity or hidden by pseudonyms or heteronyms. Although the prohibition of article 5°, IV, of the Constitution is not submitted to direct or indirect constitutional restrictions, this impediment can be object of mitigation in certain cases, in attention to the constitutional values that support state investigation. The pertinence analysis of the restrictions to the constitutional anonymity prohibition must consider the proportionality, integrated by the partial elements of adequacy, necessity and strict sense proportionality. The criminal investigation is a means to achieve a purpose, the protection of fundamental rights, because the disclosure of facts, through the investigatory activity, gives rise to the accomplishment of measures in order to prevent or punish the violations eventually verified. So, the start and the development of the state criminal investigation activity, based on a crime communication carried out by an unidentified person, will depend on the demonstration that the setting up and continuity of an investigation procedure, in each case, are an adequate, necessary and (in a strict sense) proportional means to the protection of fundamental rights

A eficácia, no ordenamento jurídico brasileiro, da responsabilização penal da pessoa jurídica pela prática de crimes ambientais

The environment, which fundamental importance has already been recognized in all the world, is an actual national and international discussion subject, whose interest grows for the society, and consequently to the Law, in order to prevent the natural resources to the present and future generations. The 1988 Brazilian Constitution, recognizing the importance of the environment, treated about it in many of its parts, even dedicating a specific chapter (Chapter V About Environment, inserted in Title VIII About Social Order). The brazilian constitutional text established to everyone the fundamental right of enjoying an equilibrated environment, obligating the State and all society to defend and preserve the environment to the present and future generations. The economic growing process, that predominated and still persist in the big majority of the countries, where is practiced the capitalist system, has in the enterprises (legal persons) one of its main actors. Many times, these enterprises, especially in the actual globalized world in where we live, where the gain of money is priorized, ends, at the moment they act, making damages to the environment. These damages are, many times, considered by the law. crimes against the environment. The 1988 Brazilian Constitution, according to the Modern Criminal Law, realizing that many crimes were being committed by the enterprises, established in article 225, §3rd, the criminal responsibility of the legal persons. Almost ten years after the 1988 Brazilian Constitution, was published the Law number 9.605/98, in which third article established the penal responsibility of the legal persons that practice crimes against the environment, without excluding the individual responsibility

Tramas da (ir)racionalidade contemporânea para a composição do mito-tecno-lógico

The plot myth-techno-logic, contemporary, was developed starting from the dualism myth-reason. In this study, we deepened the alluded dualism taking as reference the historical contexts of the Renaissance and of the Enlightenment, emphasizing the discussion of the economical rationalization as conductive thread of the western development, in which we identified the game of the rational and of the irrational, for assure the superiority of the reason. In the context of that game, we analyzed the implications of the modernization, for the education, in function of the instrumental rationality, responsible for the environment of adaptation of the technological instruments to the scenery of the contemporary modernization. The new context is constituted by points of union and of ruptures among the technique, the science and the myth. Through our analysis, we noticed that the basic needs for the contemporary society were linked to the changes in the production means, for which the machine determine the rhythm of the work and the quality of the product. However, the changes in the productive processes promoted the appearance of the commercial marks that, as we see it, they represented the synthesis of the perfect harmony of the myth, of the technique, of the science and of the technology, in the conduction of the economical rationalization to the contemporary modernization. Thus, the contemporary modernization it arrives us for the economical rationalization, developed with the support of the technician-scientific knowledge and communicated by the articulations of the myth-techno-logical

A Poética do corpo no mito e na dança butô: por uma educação sensível

The thesis presents the body poetry and its inscribing in the myth and Butô dance. The argumentation highlights the sensitive dimension present in these itineraries, as a possibility to operate the emergency of knowing inscribed in the body, bringing a kind of rationality that links the fragments, that allows the knowing to break through the barriers of disciplinary isolation, that abandons the certainties and goes through the ways of creation and that gives the body new space and time, featuring epistemological elements, ethical and esthetical, that can permit a sensitive education. All along the way, we comprehend by sensitive education, a education that considers the relinking of logical, analogical, symbolic and artistic knowledge and therefore reconsiders the own act of knowing as a continuous and inconcluded process. That sensitive education is also understood as retaking the body experience, its sensitive nature, as well as being meaningful to reading the world. It includes the body memory, its history and creativity, opening it to innovation, change, sense amplification and dialogue with other bodies and world, because it is within them. It is about an investigation of phenomenologic nature, that dialogues philosophy and art, pointing breakdowns of this reflection foe the body and education studies. We find it necessary to notice the body language, that allows one to think through movements, articulate a thought that is risen from articulations, guts and all the body. This incarnated reason starts the expressive body action, that makes us move to mean, communicate, inaugurate senses. Among these senses, we present a possibility of approach of the elements of Butô dance teaching and physical education, as ways of sensitive education showings of body poetry

El mito, el paisaje y el hombre en la literatura ando-boliviana

This research was based on a study regarding the myth, the landscape and then man in Bolivian literature, a country whose cultural tradition transcends myth and reality, with an exotic nature, inherited from extraordinary people from a remote time, with archeological remains that show its glory, making it particular among other Latin American literatures. To contextualize the literary study of this nation, rich in fantasy literature, understanding its traits in the current literature, we have sought to rescue the history of its first inhabitants, the Kollas, and the cultural reference they inherited and reviewed in the acculturation process between indigenous and Spanish people. This study is based on the contributions of Latin American theorists, such as Antonio Conejo Polar, Nestor Canclini, the Cuban ethnologist Fernando Ortiz, and especially the concept of transculturation of the Uruguayan critic Ángel Rama. Thus, we have tried to rescue a study about the Andean past, approaching the fundamentals of mythic component in literature, addressing landscape and nature as the ones that illustrate, characterize and give life to the mythical characters and social problems of the Andean man

Esperando Ulisses: o mito de Penélope à luz da comparação diferencial e discursiva

From the many weavers known, the Queen of Ithaca is certainly among the most famous.Over the years,many writers have dedicated themselves to retell the myth of Penelope in their works by their own way. According to Ute Heidmann, the modern writers recurrence to the Greek myths in order to produce their texts is a renewing discursive practice, which gives new writing and relevance to the myth. (2003, p.47). This work deals with a differential and discursive comparative analysis on the myth of Penelope linking it with two short stories from Brazilian authors: Penélope by João do Rio (1919) and Penélope by Dalton Trevisan (1959). In order to do it, we are supported by: the works of Heidmann (2003, 2006, 2008) and Maingueneau (2006). We also concentrate ourselves on the temporal trace presented in both Penelope s myth and in its modern rewriting so that we can identify how each configuration of the classical myth develops into one of the most celebrated acts of this myth: the waiting. In order to so, we seek support on the studies by Paul Ricoeur (2006), Hans Meyerhoff (1976) and Benedito Nunes (1988)

Cartografias mito-poéticas do imaginário nelidiano: das visões do mundo arcaico ao contemporâneo no romance fundador

Esta tesis trata de cómo se desarrolla en la obra de la escritora contemporánea Nélida Piñon una especie de pensamiento cartográfico, presente desde su primer romance Guia-mapa de Gabriel Arcanjo, publicado en 1961. Para que se interprete el universo literario nelidiano, formulamos nuestro trabajo estableciendo un confronto con el texto del mito iluminado por las reflexiones de Eliade (2007; 2007b; 2008) y Meletínski (2002); con el discurso filosófico pos-estructuralista, representado principalmente por las contribuciones de Deleuze y Guattari (1995; 1996; 1997) a respecto de una geografía del nomadismo; y de Foucault (1996; 2006) sobre el orden del discurso, o nacimiento de la literatura y el ser del lenguaje. Examinadas por la lectura crítica y comparativista de esta investigación, las cartografías mito-póeticas de Piñon son presentadas al lector asociándose a una geografía de los sentimientos y al que Maffesoli (2001) denomina deseo de errância y de perdición, particularmente en las obras Tebas do Meu Coração, A República dos Sonhos, O Presumível Coração da América e Fundador. Esa última novela, publicada en 1969, por lo tanto anterior a los otros textos mencionados, servirá como corpus principal de nuestro análisis, que objetiva demostrar como la narrativa de Piñon se conecta a un linaje literario estructurado a partir de las acciones de un determinado tipo de personaje conocido como inaugurador de ciudades o héroe civilizador o cultural. En la reedición de ese arquetipo de personaje, la autora instaura el elemento de la seducción, en un juego que se establece entre los sujetos masculino y femenino y que pone de manifiesto cuestiones relacionadas al erotismo, a la transgresión y al sagrado, abordadas en nuestro discurso por las consideraciones de Baudrillard (2008) y Bataille (1987). Para que se explicite la constitución de esos puntos, realizaremos un viaje de las visiones del mundo arcaico al contemporáneo por las páginas de Fundador, apuntando de qué manera la escritora brasileña retoma las imágenes del mito cosmogónico, del mito del eterno retorno y del paraíso terreal, que se inscriben como fundamento do su texto literario

Análise textual dos discursos: responsabilidade enunciativa no texto jurídico

This investigation aims at describing, analyzing and interpreting the Commitment in Initial Petitions, which is a genre circumscribed in the judicial domain. For this purpose, we have chosen sections, facts as found and relevant law , sections of the petition, with the understanding that, in this way, respectively, the narration of events, which gives margin to the propositioning to the judicial action, and the exposition of the law that upholds the author s intention. We base our discussion on the field of Linguistics, more precisely, Textual Discourse Analysis (TDA), whose theoretical basis is derived from Textual Linguistics (TL) and Enunciative Linguistics. We foreground, particularly, the way in which the author of texts, objects of analysis, use discursive strategies that evidence ER. The relevance of this study, then, is in the formation of a critique of the judicial text, as it conceives of a dialogical approach to the point of view, raising not only questions about the way in which a linguistic instance conceives an object of discourse, but also considering questions of language inherent to technical writing and, in this aspect, contributing to the work of those operating in Law about the many ways ER is formed in the body of a petition. We selected two categories to analyze that, according to Adam (2011), characterize the degree of ER in the textual material of the propositional enunciations: the different types of representation of speech and the indications of profile of mediators. In this sense, with this task as an objective, we base our study regarding point of view on Rabatel (2003, 2009a, 2010) with relation to the enunciative approach, including the study of PDV in polyphonic and dialogical theoretical framework to study the ER from different types of speech representations that conceive forms of transmission of discourse and the role of the enunciating subject, mainly the responsibility and the prerogative by the propositional contents. In the same way, intending to study the indications of the mediator profiles, we observed the postulations of Guentchéva (1994, 1996), which develop the notion of mediative grammatical categories, of which permit the linguistic marking of distance and engagement of the enunciator with regard to the information expressed. The methodology we adopted was based on qualitative research, of an interpretive and introspective nature, in light of the fact that his study focuses on processes and strategies underlying language use. The corpus of the research is comprised of Initial Petitions, which gave rise to actions originating in the Civil Court of Currais Novos County RN. The data analysis shows that an object of discourse is always perspective oriented and presents the point of view of one or more enunciators. Consequently, the producer of a text, using the PDV of other enunciators, influences and establishes the argumentative orientation of the text. In the same way, it evidences the relevance of the use of mediated constructions in the judicial text, as they function as strategies attenuated to the responsibility of the producer of the text with what is said, and at the same time points to a discourse of authority through the entrance of the sources of law. Moreover, it reveals the documental and international importance of this practice, at the same time that it exposes the compositional and normative difficulties with regard to legal and linguistic aspects