DEVIDO PROCESSO LEGAL E PROCESSO ADMINISTRATIVO SANCIONADOR NAS AGÊNCIAS REGULADORAS

This paper discusses the growing attention that, over the last decades, has been given to the administrative procedure in Administrative Law, as it also highlights the procedures which are in tune with the new trappings of this legal field. It focuses on the sanctioning competence of regulatory agencies, notably what concerns the procedural guide that conditions its exercise. It aims at gathering varied elements, many times dispersed over the legal system, so it is possible to list, with a satisfactory degree of detail, the procedural constitutional guidelines which are indispensable to the sanctioning of private entities through punitive action by regulatory agencies. It highlights the due legal process clause, for the abundance of the protective set there is around it, as a guiding constitutional principle for the application of sanctions by regulatory agencies. It examines the repercussion of the constitutional principle of the due legal process on Administrative Law, focusing on the most relevant principles on which the first unfolds itself. It analyzes, in light of the due legal process principle, the sanctioning administrative procedure developed in regulatory agencies. In conclusion, it is asserted that there is no room, in the Brazilian legal system as a whole, for sanctions to be applied summarily; that there reigns, in our system, an absolute presumption, dictated by the Constitution, that only through regular procedures can the best and fairest decision, concerning cases in which the rights of private parties could be affected, be taken by the public administration; that, respecting the principle of the right to a fair hearing, it is indispensable that there be motivation of a decision that imposes a sanction; that there should be, in homage to the principle of full defense and for the need to preserve the autonomy of the regulatory party, an appeal court in every agency; that the principles listed in the federal law No. 9.784/1999 should be mandatorily monitored by the agencies, for this is the only alternative consistent with the Constitution

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

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

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

Direitos da personalidade: uma análise acerca da concretização da tutela constitucional

It dares to ensure that the Constitution of the Republic strengthened the rights of personality. No longer considering the denial of protection to intangible rights, against the imperative command coming from the art. 5 ° of our highest law, relevant to items V and X. Overlooking these emerge with precision, those rights of personality. Innocuous have been isolated attempts of the opposition to this constitutional protection. Deny it, or rather to restrict it, as it has done insignificant part of the doctrine and isolated judgmental pronouncements, no longer prove appropriate. Today, more than before, there is pointed out that if the human being has personal rights acquired from the design, adding to this other identity elements that allow the projection of a particular social personality. Such rights, it is worth mentioning, there are bases on the principle of human dignity that is considered general provision for the protection of personality. Based on the demonstration of this fact, after climbing into the general theory of personal rights and demonstrate the legal protection that has been present in his favor, it is hoped will, general objective, to show the effectiveness of this constitutional protection. At that point, will be reserved for special to the procedural tools that it has made a decisive contribution to the realization and effectiveness of the rights of the personality, a reality that must be imposed for the benefit of the dignity of the human person, presented here as basic foundation of the Democratic State of Law. The brazilian legal system provides the normative basis needed to provide an adequate protection to personality, from the general clause of the protection of the personality. For the achievement of its effectiveness, however, is an important update methodological and cultural of the Right as well as an effective deployment of public policies and private ensuring a better quality of life for citizens

Alternância no uso dos modos indicativo e subjuntivo em orações subordinadas substantivas: uma comparação entre o português do Brasil e o francês do Canadá

The purpose of this work is to analyze the use of the indicative mood, instead of the subjunctive prescribed by the normative grammar, in complement clauses introduced by the conjunction que in Brazilian Portuguese. Contexts of use of the subjunctive according to grammatical prescription, and contexts of fluctuation on the use of that verbal mood were analyzed, in an attempt to investigate what interferes on the choice of the mood by the user of the language. This study is based on North-American Functional Linguistics theoretical perspective, oriented to analyzing language in use, in the light of the principles of grammaticalization and markedness. The results obtained support that the contexts that favor the indicative over the subjunctive are those composed by a complement clause functioning as a direct object the unmarked clause of all complement clauses and by a verb on the main sentence that belongs to the semantic field of low certainty, corresponding to the epistemic sub-mode the unmarked category of the deontic sub-mode. The results indicate that pragmatics and semantics factors influence the language user on the choice of the verbal mood. This research also presents comparative data on the use of the indicative mood in place of the subjunctive in Brazilian Portuguese and Canadian French, aiming to providing suggestions on language teaching

A relação gramatical objeto direto : implicações para o ensino de língua materna

This paper attempts to investigate the discourse manifestations of the grammatical relation direct object with respect to the syntactic, semantic and pragmatic properties that underlie this element. The research adopts theoretical orientation of the functionalism from North American and Brazilian schools inspired in Givón (1995, 2001), Hopper and Thompson (1980), Chafe (1979), Furtado da Cunha, Oliveira, Martelotta (2003) inter alia. From functionalism, the research uses principles of iconicity, markedness and informativity and it analize categories of transitivity, grounding and animacy. This research is anchored in prototype model (TAYLOR 1995); construction grammar model (GOLDBERG 1996, 2002). Both theoretical orientations share the view that language is a malleable living organism subject to socio-cultural context. Grammar is then the result of created, maintained, and systematized linguistic patterns developed from and used for language use. According to a functional linguistics and cognitivist linguistics verbs are stored in the speakers lexicon in syntactic-semantic frames which are more frequent. These frames carry information concerning obligatory and optional arguments and the semantic roles these arguments take in the clause. The analysis focuses on the semantic type of the verbs and its relationship with the argument encoded as a direct object observing the aspectual nature of verbs. Direct objects are classified according to their morphology (lexical or pronominal noun phrase), semantic role, informational content and animacy. This study discusses pedagogical implications with relation to how the grammatical concepts touched on this paper are treated in school textbooks. The empirical data come from Corpus Discurso & Gramática: a língua falada e escrita na cidade do Natal (FURTADO DA CUNHA, 1998). This corpus is composed of texts that contain spoken and written modalities. These modalities are in turn organized according to different types: personal narratives, retold narrative, description of preferred place, procedural place, procedural description and report on argumentation. The sample data totals 40 texts produced by four language consultants of the last graduation date. The paper shows that the same syntactic structures (formed through Subject-Verb-Object) correspond to different semantic-pragmatic structures in relation to specific communicative purposes even verb is an event, process or state. The argument structure are not aleatory but are related to experience; that is the way humans conceptualize the world and talk about it

Estratégias de relativização no português brasileiro e implicações para o ensino: o caso das cortadoras

This work consists of a cognitive-functional approach of relativization strategies of Brazilian Portuguese (BP), this is, standard relatives (with preposition or without it) and non-standard relatives (copiadora and the deletion pattern), and it emphasizes the last one. We investigate the use of the relative construction strategies in spoken and written texts produced by speakers from different school levels in a specific situation: a face-to-face interviewing. Our database is the corpora Discurso & Gramática: a língua falada e escrita na cidade do Natal e a língua falada e escrita na cidade do Rio de Janeiro. We contrast the use of the standard relative to the deletion pattern in prepositional context, by considering cognitive, social and interactional motivations for the use of the deletion pattern instead of the standard one. Our research leads us to verify that the deletion pattern is fixing as the preferred relativization strategy in prepositional contexts, and, in this way, it brings out a grammaticalization process in working. For this reason, we propose to take this relative construction as a common way to structure a relative clause, in the same way we take the standard pattern. Finally, we discuss the treatment of questions related to the processes of teaching and learning of Portuguese language and some suggestions are given in terms of class activities. We expect that the development of this research may give both support for the Portuguese teachers and suggestions to improve the teaching and learning process of Portuguese language, contributing in special to the treatment of the syntax of complex clauses.

As sentenças com é ruim que no português brasileiro

Based on studies on the structure of copulates sentences in Brazilian Portuguese (PB), according to grammar theory, it s analyzed on this dissertation, the complex copulate sentences what, in the PB, initiated by the formation é ruim que in the PB, bringing the hypothesis that they can have one predicacional reading (PRED) and other especificacional reading (ESP). It s revealed what, though they are similar slightly, that makes the different that are triggered is structural configuration of sentence and the form as come emerged the its constituents: that of PRED interpretation, that we defined as Common Copulate Sentence (or SCC), it s checked that the constituent ruim, and only it, is predicate of a Small Clause, and appears in the structure on even position wherein is pronounced, not passing by the method of movement, from where introduce wide predication on all subject, that is the CP built-in; those sentences é ruim que understanding ESP, that denominate of Negative Copulate Sentence (or SCN), whereas the fixed expression contradict or right what is asserted in built-in, it s perceived what the ruim is a part of this fixed expression, and surely crystallized, which appears in structure per movement, germinated as adjunct of Inflexional Phrase (IP) and being elevation to specifier to FocP (or SpecFocP), where acquires discursive interpretation of focus. Besides the mode as the ruim or the fixed expression emerge in that sentences, the relation between the copula and main verb likewise contribute to distinguish the sentences: 1) regarding flexion of mode, when is a SCC, the copula must be in the mode indicative, and the main verb, in the subjunctive; when is a SCN, copula and main verb must be always on indicative; 2) regarding flexion of temp, both the copula as main verb of the SCC can be flexed, whereas at the SCN, the main verb can vary in present, past and future, but the copula should appear, necessarily, in third persona of present of indicative, what confirms our hypothesis that there is an fixed expression at the copulate sentences with é ruim que ESP. Other two evidences are pointed as characteristics that distinguish the sentence with é ruim que PRED of sentence with é ruim que ESP: 1) in semantics, the constituent ruim equals not good, that has appreciation, when the reading will PRED; already the pair é ruim equals not, at the ESP; 2) in prosody, there discrete sound elevation the ruim on the other constituents of SCC, PRED, while there is accentuated acoustic elevation on the ruim of SCN, ESP. Our search it is grounded in authors as Zanfeliz (2000), Modesto (2001), Mioto (2003), Kato & Ribeiro (2006), Lobo (2006), Quarezemin (2006, 2009, 2011, 2012) e Resenes (2009), researchers that devoted their attention on studies the formation and organization of the constituents of cleaved sentences and focalization of constituent, basing itself in approach generative of linguistic

Extrafiscalidade: análise da norma potiguar regulamentadora do imposto sobre propriedade veicular automotora à luz da tutela ambiental

From the second half of the twentieth century the state bega n to use exaction beyond your fiscalist character, also as a means of alignment deformities economic and social balance, influencing in different directions, according to economic, social and political policy. It is what is usually called the extrafiscalit y. It is in light of this phenomenon and the constitutional perspective, the present work aims to analyze item IV of article. 8 of Law n. 6.967/96, regulatory Property Tax Vehicle Automotive (property taxes) in the State of Rio Grande do Norte, in view of its possible incompatibility with the principles of the Basic Statute and with international guidelines for protection of the environment The problem of this research is Seated in art. 225 of the Constitution, which provides that everyone has the right to an ecologically balanced environment. From the reading of this standard, extracted it is the responsibility of the state protecting the environment, which requires the adoption of suitable actions to that end. However, we look to state law cited follows th e constitutional path, since it exempts the collection of property taxes automotive vehicles with over 10 years of manufacturing, which could encourage the conservation of a fleet of old vehicles, mostly more polluting and harmful to the environment and hu man health. Would the state legislature oblivious to the constitutional principles and the global trend of environmental preservation? Thus questions whether such an incentive for more polluting vehicles, emitting more gases in the atmosphere. Moreover, th e international community is already moving through important conventions in an attempt to minimize and control global warming and climate change. Predicting the theme in CF/88 demonstrates that the country is no stranger to the issue. Thus, the work is a retelling of Law No. 6.967/96 order to check whether it is compatible with the existing system. The methodology consists of a documentary, deductive, dialectical literature. At the end of the survey, it was found that provide a tax benefit to these vehicle s is encouraged to maintain them in circulation and contribute to the increase in air and noise pollution, in addition to the traffic problems generated. Thus, this potiguar anything standard can be expressed extrafiscality because the medium and long term there is encouragement and worsening environmental problem. Despite the ability to pay clause, but this remission is an affront to legally protected interests. Thus, this device goes in reverse order compared to the values of the legal system and in relat ion to sustainable development. Modern Tax Law should be used as a tool to achieve the purposes collimated by the State, and not otherwise. It was noticed that the vast majority of Brazilian states does not follow this rule, including Mato Grosso and Minas Gerais have no such exemption. Therefore, the RN State does not constitute a model for sustainable public policies, nor example of environmental protection by state law.