Desenvolvimento e efetivação da garantia a duração razoável do processo civil

The present paper aims at analysing the constitutional principle which foretells lawsuit s rational run warranty. We came from a principle standard-constitutional analysis, showing its historical descent, its position and hermeneutical extent which can be given to the dispositive text. Being based on the institute standard examination, we then went to infraconstitutional analysis of the rules related. We noticed that there are specks of legal and practical advancements, however there are also some clear limitations for the lawsuit s rational run judicial development and accomplishment. In short, it is about a principle-logical constitutional standard which must be more and more compacted

Apelação no código de processo civil: uma análise sob o prisma do princípio da efetividade

The present dissertation, elaborated is based on the deductive method, through the use of the General Theory of Resources concepts, by the main types of judgments existing in the Code of Civil Procedure, the interlocutory judgment and sentence, as well as the features and effects that challenge these decisions, we sought to identify on this theme one of the greatest evils facing the justice system in the world, which is the processing delays. This slowness in adjudication affects seriously the principle of effectiveness, one of the postulates of procedural law and society as a whole. Thus, the use of tort serves to fight the interlocutory decision and appeal which challenges the judge`s ruling. It is a resource for excellence in appellate system as it meets with the most awaited decision of the process. In weighing the importance of the appeal that seeks to oppose the court decision today by the numerous reforms that the procedural system has been through, it has ended up to transform the process ineffective or inconsistent, for it is much easier to have efficacy in a interlocutory decision for preliminary injunction than by judgment on the merits of the judge. This is due to the prevision of the resources and their effect to those decisions. That is, the interlocutory decision involves interlocutory appeal only in the devolved effect, allowing its provisional execution, and the sentence has as recourse to appeal the double effect, remanding and suspension, which necessarily prevents its provisional execution. But it undeniably shows a paradox, because as to give effect to a measure that is based on a mere probability by a summary cognition, partial and superficial, and stop it on a decision by a court that is closer to the truth and sure, for a full and depleting cognition? It is seriously affect the principle of effectiveness. Therefore, starting from this ineffectiveness, sought to defend the solution of this problem with the approval of the bill n. º 3.605/2004 or the new Code of Civil Procedure project that modifies the general rule the effects of appeal. That is, remanding and suspensive, as to merely remanding effect to and thereby enable the provisional execution of the judgment of the court of the first degree of jurisdiction, giving effectiveness and enhancing the decision of the magistrate, making a fair distribution of time in the process and better guaranteed principle of access to justice

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

Responsabilidade civil como função social na distribuição e revenda de combustível face ao direito do consumidor e ao meio ambiente

The civil liability of the distribution and retail fuel stems from the fact business activity developed to be high risk and can be said as risk inherent or latent danger that has predictability and normality characterized by placing the consumer in a position of vulnerability, such as the environment, both public policies defined and constitutional protection. Consumer protection as a fundamental right and the environment as the primacy of social order aims the welfare and social justice, as inserted right to the third dimension, are guarded by the State when it creates operational standards through public policies and indirectly intervenes in the economic order. This intervention is due to consumer protection and the environment are economic order principles, founded on free initiative and free competition, ensuring everyone a dignified existence which underlies the irradiation of fundamental rights in private initiative, before the commercial evaluation, mass consumption, the emergence of new technologies that link consumers to the environment before the protection of life, health and safety and ensuring a better quality of life for present and future generations. To repair this damage and the right to information are provided as fundamental rights that put the person at the epicenter of the relations and collective interest stands out against individual interests that to be done need public-private partnership. In such a way that the used methodology was an analysis of documents correlating them with bibliographic sources whose goals are to recognize the civil responsibility as limit to subjective right, having to develop a social function where guilt and risk grow distant and the damage is configured as a consequence of inherent risk, requiring the State interventional postures in fulfilling its public policy; prevailing in these risky activities the solidarity of those involved in the chain of production and socialization of damage forward those are provided directly of products of hazardous nature that put in a position of vulnerability the environment and the consumer

Análise do processo judicial eletrônico (PJe) sob os parâmetros da discursividade processual e do acesso democrático à justiça

The conceptions of the judicial function, the process and the factors of legitimacy of the norm of decision are changed according to the model of State (liberal, social democratic and constitutional). The right of access to justice, likewise, follows the ideals present in constitutional movements experienced in different historical moments. The deficit of legitimacy of the judiciary is recurring subject of study in the doctrine, especially in the face of democratic standards that permeate the current paradigm of state. Under the process law, the essential element for the distinction of the states based on the rule of law (formal and material) and the democratic constitutional state lies in the democratic guarantee of participation to the litigants in the process of elaborating the norm of decision. The concern about the participatory democracy and the concretion of fundamental rights has as presupposition the conception of popular sovereignty. Keeping this effort in mind, the civil procedure cannot be oblivious to such considerations, especially when it justifies its constitutional conformation from the institutionalization of discourse within the procedural field (democratic principle) and of the democratization of access to justice, leading to the necessary contestation of the theory of instrumentality of the process. The democratic prospects of civil procedure and the concern about the legitimacy of the rule of decision cannot be moved away from the analysis of the judicial function and the elements that influence the legal suit s progress. The computerization of the judicial process entails extensive modification in the way the judicial function is developed, in view of automation of activities held, of the eliminating of bureaucratic tasks, manual and repetitive, and of streamlining the procedure. The objective of this study is to analyze the dogmatic changes and resulting practices from the implementation of the Judicial Electronic Process (JEP), prepared by the National Council of Justice, under the parameters of procedural discourse and democratic access to justice. Two hypotheses are raised, which, based on a bibliographic-documentary, applied and exploratory research, are contested dialectically. The expansion of publicity of procedural acts and the facilitating of communication and practice of such acts are elements that contribute to the effective participation of the recipients of the norm of decision in its making process and, therefore, the democratic principle in the procedural field. Ensuring access (to the parts) to the case files and reasonable duration of the process along with the preservation of its founding principles (contradictory, legal defense and isonomy) are essential to ensure democratic access to justice within the virtual system

O direito de não produzir prova contra si mesmo

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A política pública de segurança em Mossoró-RN: uma avaliação de processo da implantação da guarda civil (2009-2013)

The subject of public safety is part of the academic and popular discussions, due to several factors that act in society culminating in an increasing criminality. The importance of the evaluation of public policies in this context consists in a possible control tool, monitoring and necessary adjustments to the government to make the necessary changes. Given this reality, it is thought the research problem: how Mossoró (RN) city has implemented his public security policy? In general guideline of the research, we work with the following hypothesis: the own formulation of the National Policy of Public Safety there are elements that hinder the implementation of a public policy of municipal security in Mossoró. The objective of this research is to evaluate the existing security public policy in the city of Mossoró, by the elements that facilitate and/or hamper its implementation, through the actions of municipal government in the activities of the Mossoro Civil Guard (GCM). For this, a review of the implementation process was conducted, specifically its subprocesses of selection, training, and logistical or operational. Was used bibliographical research, documental primary and secondary, and field research, with conducting of interviews. It was found that with a staff of 197 guards, and with five years of creation, the actions developed by this institution refer to an early implementation of the municipal security policy. The guard has the basic pattern selection, part of function relocation and part of public tender. The formation occurs in an introductory way, however, not complete and specific, for the function performance. Its operability is limited by the number of existing effective and by the physical structure that has not matching the demand yet, which touches on the municipal budgetary reality of direct resource intended to safety. It was found the absence of a municipal plan of public security with principles, guidelines and goals that could direct the actions of the guard. It is concluded that despite of the implementation of the GCM Mossoró have not achieved, within the parameters of efficiency, efficacy and effectiveness have played their actions, projects and programs, it could trigger a process of opening for construction of a municipal security policy. As well as break with the paradigm of municipal actions just meant for surveillance of public property, interaction affirmative for the prevention of violence and crime

A ação civil pública como meio de concretização do direito à saúde na Constituição de 1988

The work presented here is about aspects of the constitutional extension in which is the public civil action with the objective of verifying its aptitute in tutelaging subjective situations derived from fundamental rights, especially right to health assistance. Thus, it offers a clear analysis of the practical functioning of most aspects of the public civil action (lawsuit), with philosophical foundation and necessary doctrinaire to your comphehension. How it once was (history), how it could be (reform suggestion), how it is (current interpretation of the law) and how it should be (critic analysis of the microsystem of collective tutelaging of rights, its perspectives, as well as the efficacy of the public cilvil action about accomplishment of the right to health as supraindividual right). The objective is to analyse the main version of the theme (for instance: the impacts caused to the dissociation of the Procurations theory), so that it can be extracted the philosophy and the general theory, of the public civil action and collective tutelaging in general, pragmatically applicable to study purposes. With this theorical fountain, the reader will be in a more solid position, not only being able to understand the subtilities of the public civil action, but mainly being able to recognize its faults and present solid reform proposals and improvement. It is know that the Juridical Power (Procuration) does not allow any more inactivity about negating accession to health in its collective dimension (lato sensu: spread, collective stricto sensu and homogeneous individuals), being imputed to it novel usage that consolidates in the assumption of the role instrument set aside to be used by all with organized instancy of solution to collective conflicts in large sense. This happens, overall, because of the current justice politization, understood as juridical activism, connected to the struggle between the groups defending their interests and the acceptance of the constitution about solidifying the public politics of quality health

Devido processo penal: uma análise acerca dos direitos fundamentais sob a perspectiva do processo eletrônico

The current study presents an analysis about the automation of the lawsuits in Brazil, which opens a new direction to be followed by the National Secretary of Justice, applied indistinctively to the civil, criminal and labor lawsuits, as well as to the special court houses at any degree of juridisdiction. It treats, specifically, about the transition from the classic lawsuit with bureaucratic aspects to the electronic one, based on the simplicity of the functions, the quality of the oral and the readiness. The light of the constitutional principle of the reasonable duration of the lawsuit, while fundamental rigth of the defendant and, under de protection of the democratic guarantee, it investigates, from the theory of the fundamental rights to the reform movement of the lawsiut, in the scenery of the alien law and national law, the latter, mostly because it has the automation as a necessary improvement claimed by modernity, yet without forgetting of the humane character inherent to the criminal lawsuit. It faces the issue of of the disruption of the paradigm of the written formality of the Brazilian lawsuit, the problem of the resistance to the new automized method, the use of the video conference for the inquest of the witnesses as well as for the questioning of the defendant, the advancements of the virtual lawsuit on the Superior Courts, Federal Supreme Court and Superior Court of Justice, it treats also about the role of the National Council of Justice - CNJ - to uniformize the legal proceedings in the country. Without neglecting the effective respect to the fundamental rights, it focuses the cultural change necessary so that the electronic technology can be, in fact, in the indictment system, the means to reach with excellency the citizenship by the simplification of the legal proceedings, transposing the baseless bureaucracy and assuring an effective judicial service assistance in order to have a better quality of life

O direito à saúde e a política nacional de atenção oncológica: uma análise a partir da crescente judicialização dos medicamentos antineoplásicos

The 1988 Federal Constitution of Brazil by presenting the catalog of fundamental rights and guarantees (Title II) provides expressly that such rights reach the social, economic and cultural rights (art. 6 of CF/88) as a means not only to ratify the civil and political rights, but also to make them effective and practical in the life of the Brazilian people, particularly in the prediction of immediate application of those rights and guarantees. In this sense, health goes through condition of universal right and duty of the State, which should be guaranteed by social and economic policies aimed at reducing the risk of disease and other hazards, in addition to ensuring universal and equal access to actions and services for its promotion, protection and recovery (Article 196 by CF/88). Achieving the purposes aimed by the constituent to the area of health is the great challenge that requires the Health System and its managers. To this end, several policies have been structured in an attempt to establish actions and services for the promotion, protection and rehabilitation of diseases and disorders to health. In the mid-90s, in order to meet the guidelines and principles established by the SUS, it was established the Política Nacional de Atenção Oncológica PNAO, in an attempt to sketch out a public policy that sought to achieve maximum efficiency and to be able to give answers integral to effective care for patients with cancer, with emphasis on prevention, early detection, diagnosis, treatment, rehabilitation and palliative care. However, many lawsuits have been proposed with applications for anticancer drugs. These actions have become very complex, both in the procedural aspects and in all material ones, especially due to the highcost drugs more requested these demands, as well as need to be buoyed by the scientific evidence of these drugs in relation to proposed treatments. The jurisprudence in this area, although the orientations as outlined by the Parliament of Supreme Court is still in the process of construction, this study is thus placed in the perspective of contributing to the effective and efficient adjudication in these actions, with focus on achieving the fundamental social rights. Given this scenario and using research explanatory literature and documents were examined 108 lawsuits pending in the Federal Court in Rio Grande do Norte, trying to identify the organs of the Judiciary behave in the face of lawsuits that seeking oncology drugs (or antineoplastic), seeking to reconcile the principles and constitutional laws and infra constitutional involving the theme in an attempt to contribute to a rationalization of this judicial practice. Finally, considering the Rational Use of health demands and the idea of belonging to the Brazilian people SUS, it is concluded that the judicial power requires ballast parameters of their decisions on evidence-based medicine, aligning these decisions housing constitutional principles that the right to health and the scientific conclusions of efficacy, effectiveness and efficiency in oncology drugs, when compared to the treatments offered by SUS

O direito fundamental contra a autoincriminação: a análise a partir de uma teoria do Processo Penal Constitucional

The right against self-incrimination is a fundamental right that works in the criminal prosecution, and therefore deserves a study supported by the general theory of criminal procedure. The right has a vague origin, and despite the various historical accounts only arises when there is a criminal procedure structured that aims to limit the State´s duty-power to punish. The only system of criminal procedure experienced that reconciles with seal self-incrimination is the accusatory model. The inquisitorial model is based on the construction of a truth and obtaining the confession at any cost, and is therefore incompatible with the right in study. The consecration of the right arises with the importance that fundamental rights have come to occupy in the Democratic Constitutional States. In the Brazilian experience before 1988 was only possible to recognize that self-incrimination represented a procedural burden for accused persons. Despite thorough debate in the Constituent Assembly, the right remains consecrated in a textual formula that´s closer to the implementation made by the Supreme Court of the United States, known as "Miranda warnings", than the text of the Fifth Amendment to the U.S. Constitution that established originally the right against self-incrimination with a constitutional status. However, the imprecise text does not prevent the consecration of the principle as a fundamental right in Brazilian law. The right against self-incrimination is a right that should be observed in the Criminal Procedure and relates to several of his canons, such as the the presumption of not guilty, the accusatory model, the distribution of the burden of proof, and especially the right of defense. Because it a fundamental right, the prohibition of self-incrimination deserves a proper study to her constitutional nature. For the definition of protected persons is important to build a material concept of accused, which is different of the formal concept over who is denounced on the prosecution. In the objective area of protection, there are two objects of protection of the norm: the instinct of self-preservation of the subject and the ability to self-determination. Configuring essentially a evidence rule in criminal procedure, the analysis of the case should be based on standards set previously to indicate respect for the right. These standard include the right to information of the accused, the right to counsel and respect the voluntary participation. The study of violations cases, concentrated on the element of voluntariness, starting from the definition of what is or is not a coercion violative of self-determination. The right faces new challenges that deserve attention, especially the fight against terrorism and organized crime that force the development of tools, resources and technologies about proves, methods increasingly invasive and hidden, and allow the use of information not only for criminal prosecution, but also for the establishment of an intelligence strategy in the development of national and public security

A OAB no processo de transformação da sociedade brasileira: a seccional potiguar como espaço de redemocratização (1979-1988)

The period known as the Military Dictatorship (1964-1985) was a period of history marked by Brazil's control of state power by the Armed Forces together, this started with the Civil-Military Coup of April 1964. Was characterized as a time where political freedoms of expression and were placed in check by authoritarian and repressive measures taken by the military governments. The sectional potiguar of the Ordem dos Advogados do Brasil (OAB / RN), and the Federal Council of the institution, supported the establishment of this scam, but from the 1970s undertook measures that sought to corroborate the struggles around democracy the country, which has consolidated its image as a defender of democratic order. With the title inspired by the XII Meeting of OAB in October 1988, the research aims to analyze the participation of OAB / RN and its members within the Brazilian democratization. This analysis begins in 1979 with the participation of the entity in discussions Amnesty Policy to the promulgation of the 1988 Constitution, since the Constitution is the beginning of a full rule of law. We seek to understand the object as a space for democratization, combining the concepts of History, Memory and Politics. In the analyzes are guided theoretically by Jacques Le Goff, Pierre Nora, Maurice Halbwachs, Pierre Bourdieu and Hannah Arendt. Be rebuilt the period of democratic rule in the land potiguares birthing shares of OAB / RN, particularly in the following events: Amnesty Policy 1979, the mobilizations around the campaign of "Direct Now" and the 1988 Constitution We make use of legislation. minutes, papers and interviews built on Oral History.

O estrategista em perspectiva: um estudo sobre o processo de formação de estratégias no ramo varejista de construção civil de Natal e região metropolitana

The strategy research have been widespread for many years and, more recently, the process of formation of the strategies in the individual perspective has also gained attention in academia. Confirming this trend, the goal of this study is to discuss the process of formation of the strategies from an individual perspective based on the three dimensions of the strategic process (change, thinking and formation) proposed by De Wit and Meyer (2004). To this end, this exploratory-descriptive study used the factor analysis techniques, non-parametric correlation and linear regression to analyze data collected from the decision makers of the 93 retail in the industry of construction supplies in the Natal and metropolitan area. As a result, we have that the formation factors of the dimensions investigated were identified in the majority, thus confirming the existence of paradoxes in the strategic process, and that there is a relationship between logical thinking and deliberate formation with the hierarchical level of decision makers.

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.