A Eficácia dos direitos fundamentais nos contratos civis e de consumo: uma teoria contratual baseada na colisão dos direitos ou bens constitucionalmente protegidos

The apparent virtuosity that if could wait of the globalization and the neoliberalism has given signals of deterioration in the contractual relations, especially in contracts of mass consumption, generating innumerable offensive situations to the basic rights and the goods constitutionally protected of the contractors. In the world of today, still that it does not reveal any desire, the individual practically is compelled to contract, for force of necessities and customs completely imposed, mainly in face of the essentiality of the services or agreed to goods. Ahead of as much and unexpected changes in the civil liames and of consumption, dictated for the globalization, it comes to surface the reflection if the private law e, more specifically, the civil law, meet prepared adequately to deal with these new parameters of the economy. The present dissertation has the intention to investigate if the globalization and the consequent neoliberalism, in this beginning of third millennium, will imply to revive of the principles and the basics paradigms of the contracts that consolidated and had kept, for more than two centuries, the liberal State. One notices that the study of this phenomenon it gains importance to the measure where if it aggravates the decline of the social State (Welfare State), with the embrittlement and the loss of the autonomy of the state authority, over all in countries of delayed modernity, as it is the case of Brazil, that presents deep deficiencies to give or to promote, with a minimum of quality and efficiency, essential considered public services to the collective and that if they find consecrated in the Federal Constitution, as basic rights or as goods constitutionally protecting, the example of the health, the education, the housing, the security, the providence, the insurance, the protection the maternity, the infancy and of aged and deficient. To the end, the incidence of constant basic rights of the man in the Constitution is concluded that, in the process of interpretation of the right contractual conflicts that have as object rights or goods constitutionally proteges, in the universe of the globalized perhaps economy and of the neoliberalismo, it consists in one of the few ways - unless the only one - that still they remain to over all deal with more adequately the contractual relations, exactly that if considers the presence of clauses generalities in the scope of the legislation infraconstitutional civil and of consumption, front the private detainers of social-economic power. To be able that it matters necessarily in disequilibrium between the parts, whose realignment depends on the effect and the graduation that if it intends to confer to the basic right in game in the private relation. The Constitution, when allowing the entailing of the basic rights in the privates relations, would be assuming contours of a statute basic of all the collective, giving protection to the man against the power, if public or independently private

Universalização do acesso à saúde e regulação dos planos privados de assistência à saúde: a atuação regulatória da ANS como instrumento de harmonia contratual e viabilização do papel suplementar da iniciativa privada na efetivação do direito social à saúde

While essential to human nature, health and life have been protected since ancient times by various areas of knowledge, particularly by the Law, given its dynamics within the regulation of social interactions. In Brazil, health has been granted major importance by the Federal Constitution of 1988, which, disrupting the dictatorial authoritarianism, inaugurating a Social State and focusing on the values of freedom and human dignity, raises health to the condition of a social right, marked predominantly by an obligational bias directed, primarily, to the State, through the enforcement of public policies. Although, given the limitation of the State action to the reserve for contingencies, it turns clear that an universalizing access to public health is impossible, seen that the high cost of medical provisions hinders the State to meet all the health needs of the rightholders. As a result of the inefficiency of the State, the effort of the Constituent Assembly of 1988 in creating a hybrid health system becomes nuclear, which, marked by the possibility of exploration of healthcare by the private initiative, assigns to the private enterprise a key role in supplementing the public health system, especially through the offer of health insurance plans. At this point, however, it becomes clear that health provisions rendered by the private agents are not unlimited, which involves discussions about services and procedures that should be excluded from the contractual coverage, for purposes of sectoral balance, situation which draws the indispensability of deliberations between Fundamental Rights on one hand, related to the protection of health and life, and contractual principles on the other hand, connected to the primacy of private autonomy. At this point, the importance of the regulation undertaken by the ANS, Brazilian National Health Agency, appears primordial, which, by means of its seized broad functions, considerable autonomy and technical discretion, has conditions to implement an effective control towards the harmonization of the regulatory triangle, the stability and development of the supplementary health system and, consequently, towards the universalization of the right to health, within constitutional contours. According to this, the present essay, resorting to a broad legislative, doctrinal and jurisprudential study, concludes that economic regulation over the private healthcare sector, when legitimately undertaken, provides progress and stability to the intervening segment and, besides, turns healthcare universalization feasible, in a way that it can not be replaced efficiently by any other State function.

Análise da eficiência de contratos de serviços de elevada especificidade terceirizados pela petrobras

The definition of the boundaries of the firms is subject that has occupied the organizational theorists long ago, being the seminal work of Coase (1937) indicated as the trigger for one theoretical evolution, with emphasis on governance structures, which led to a modern theory of incomplete contracts. The Transaction Cost Economics (TCE) and Agency Theory arise within this evolution, being widely used in studies related to the theme. Empirically, data envelopment analysis (DEA) has established itself as a suitable tool for analysis of efficiency. Although TCE argues that specific assets must be internalized, recent studies outside the mainstream of theory show that, often, firms may decide, for various reasons, hire them on the market. Researches on transaction costs face with the unavailability of information and methodological difficulties in measuring their critical variables. There`s still the need for further methodological deepening. The theoretical framework includes classic works of TCE and Agency Theory, but also more recent works, outside the mainstream of TCE, which warn about the existence of strategies in use of specific assets that aren`t necessarily aligned with the classical ideas of TCE. The Brazilian oil industry is the focus of this thesis, that aimed to evaluate the efficiency of contracts involving high specificity service outsourced by Petrobras. In order to this, we made the categorization of outsourced services in terms of specificity, as well the description of services with higher specificity. Then, we verified the existence of relationship between the specificity of services and a number of variables, being found divergent results than those that are preached by the mainstream of TCE. Then, we designed a DEA model to analyze the efficiency in the use of onshore drilling rigs, identified among the services of highest specificity. The next step was the application of the model to evaluate the performance of drilling rigs contracts. Finally, we verified the existence of relationship between the efficiency of contracts and a number of variables, being found, again, results not consistent with the theory mainstream. Regarding to analyze of efficiency of drilling rigs contracts, the model developed is compatible with what is found in academic productions in efficiency of drilling rigs. The results on efficiency show a wide range of scores, with efficiencies ranging from 31.79% to 100%, being low the sample efficiency average. There is consonance between the model results and the practices adopted by Petrobras. The results strengthen the DEA as an important tool in studies of efficiency with possibility to use for analysis other types of contracts. In terms of theoretical findings, the results reinforce the arguments that there are situations in which the strategies of the organizations, in terms of use of assets and services of high specificity, do not necessarily follow what is recommended by the mainstream of TCE

Outorga onerosa do direito de construir e dinâmica do mercado imobiliário formal: planejamento e descaminhos na expansão urbana de Parnamirim RN (2008-2010)

The `Outorga Onerosa do Direito de Construir - OODC` (Public Concession of Building Rights), instrument instituted by The City Statute in 2001, has as main objective the recovery of urban property, seeking for a fair distribution the urbanization benefits. The possibility of usage of the OODC instrument is linked to the maximum utilization coefficient, determined to specific areas in accordance to existing infrastructure conditions, further taking into account the formal real estate market, expansion axis and crowding. Being an instrument which establishes values to be paid for a better use of land, it maintains a narrow relation to the real estate, incentivizing or discouraging the crowding in specific areas. The present study investigates the relationship between the criteria for the making of the Public Concession of Building Rights instrument and the dynamics of the formal real estate market. It takes as empiric universe Parnamirim (RN), part of the Natal Metropolitan Area (RN), focusing on the application of the OODC in the period of 2008-2010. It seeks to better understand the necessary basis for the formulation of the instrument, about how it works and its relation to the formal real estate market. It aims to depict the formal real estate market by presenting the production of urban space in Parnamirim in terms of intensity and nature of the real estate, furthermore identifying the licensed properties through the application of the municipality instrument. For the conclusion, it is discussed the criteria for the formation of OODC, its relationship to the dynamics of the formal real estate market and its influencing possibilities in the processes of usage and occupation of land in the context of urban planning

Antigos sujeitos, novos direitos: as relações homoafetivas estáveis e o direito de reconhecimento

Esta dissertação é um estudo sobre as representações e práticas sociais relativas à construção da conjugalidade homoafetiva e o direito de reconhecimento. Nesse contexto, são analisados os embates ideológicos decorrentes das tentativas de redefinição das representações e práticas sociais relativas à família e a conjugalidade, em sua feição heterocêntrica, a partir das disputas em torno do reconhecimento social e jurídico das uniões homoafetivas, desencadeadas no contexto da sociedade brasileira, a partir da apresentação, no Congresso Nacional, do Projeto de Lei n° 1.151/95, da Deputada Marta Suplicy, que disciplina a união civil entre pessoas do mesmo sexo

Quem tem direito à moradia? :uma análise da política nacional de habitação e dos programas de habitação de interesse social (2003-2005)

This dissertation analyses the Brazilian housing policy of today s, focusing on the programmes in the socalled Social Interest Housing Subsystem in order to discuss to what extent the government has been able to grant housing constitutional rights in the country. The discussion is about housing policy and the principles in the country s Constitution regarding the role of housing as a social right, a right that must be granted by the state. This refers to land rent theory to understand the relationship between capital and property and the reasons why, under capitalism, housing becomes a commodity in the market. Then, it discusses the national housing policy, which emphasizes land ownership through financing, that is, via market, a process that excludes all low income population. In the conclusion, it is clear that, although government programmes cover extensively at least potentially the national territory as well as social group, subsidized housing programmes cannot be implemented in the city due to land prices because subsidy is too low. In this way, the law that grants housing rights to all Brazilian citizens is violated

Efetivação da garantia de defesa no estado constitucional de direito: colisão entre o poder punitivo e garantia de defesa

The domination of the violence for the Rule of law awakened a tension between the practice of the punitive power and the right to counsel. However, throughout the recent history of the Criminal law, this shock of forces has been determined for the punitive power. In this perspective, the present work intends to submit the guarantee of defense to a critical judgment, in search to conciliate its content to the Constitutional State of Right. For in such a way, it will be necessary to recognize the disequilibrium of the situation, but without considering the superiority of any of these elements. The State in such a way must fulfill the function to punish the culprits as to acquit the innocents. Despite the law is far from obtaining a harmonious speech, it is necessary that the defense guarantee coexists the punitive power as part of an only public interest, which is, to make criminal justice. In such a way, the existence of a sustainable balance between the punitive power and the guarantee of defense depend on the minimum interference of Criminal law and, also, of the judicial position in the concrete case. The present work faces, therefore, the moment of crisis of the Criminal law, consolidated with the advent of a new way of thinking according to the procedural guarantees, that will demand the overcoming of the old concepts. The Constitutional State of Right not only constitutes an efectiveness of the regime of the right to counsel, but in a similar way it searchs to accomplish the right of action and criminal justice as a whole. Knowing that the philosophy of the language raises doubts on the certainty, the truth and the judgement, it is imposed to understand that the defense guarantee is no more about a simple idea, but, in the crooked ways of the communication, we intend to find what the judge s function is when he faces this new reality

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

O direito à saúde: a medida do dever do estado de fornecer Medicamentos de dispensação excepcional à sociedade sob a ótica do desenvolvimento

It is a fact that the fundamental rights of citizens are being recognized and guaranteed by the state over time, regardless of the belief that if these rights has always been part of the heritage of subjective individuals, or whether they will be aggregated during the course of human history. In that, emerged the rights of freedom of men and, subsequently, the rights to create a situation of equality between the humans, the so-called social rights. In turn, as these rights known as social, to be implemented, need a positive action by the state, more precisely by the state power whose function is to manage public money and create policies for implementation of fundamental rights. Given this, pay attention to the right to health, was created the Programa de Medicamentos de Dispensação Excepcional, which aims to provide high-cost medicines to citizens Brazilian carriers of serious diseases, such as Alzheimer's and Mal Hepatitis C. Also on the program, it provides a way which will be mandatory that the drugs will be offered in such situations, and does not include a means of updating the list predicted able to monitor the progress of medicine that have been in the interest of the program. Given that, at present it is necessary to mention the recognition of another fundamental right: the right to development, which is the right of access to positive actions being implemented by the State, which are nothing more than public policy, gender which the Programa de Medicamentos de Dispensação Excepcional is kind. Thus, through the search in legislation and doctrine in relation to the theme, this work has the aim to examine the extent of the state to provide exceptional dispensing of medicines. Specifically, if the State in attention to the right to development and the implementation of the right to health, can really list exhaustively the drugs to be provided by the State, and what are the elements guiding this choice and how to control the same

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

O direito à informação jornalística: garantias constitucionais ao direito de ser informado no sistema brasileiro.

The freedom of social communication referred to those freedoms exercised under of the media. The journalism is professional activity responsible for factual information, real, pluralistic and of the public interest, directed diffusely to social orientation. The right of the information, characterized as diffuse right or of fruition by uncertain and numerous holders, is subdivided in the right of the inform, inform yourself and right to be informed. The journalists, as occupants of a enlarged spectrum concerning of right of the inform, have responsibility for the information they disseminate, devoir that puts on the basis of the constitutional right to be informed. This duty is divided with journalistic companies, when them realized. In the research, examined the existence of constitutional guarantees the right to be informed. To answer the question, realized research to support bibliographical and documentary. The guaranty is a empirical preoccupation coated with legality, since lends itself effect concretize a right. Traced so a panel of guarantees of institutional imprint, substantive and procedural. Treating of the institutional guarantees the right to information, it would refer to true institutions (as the free press) and may begin subjective rights. In the case of substantial guarantees, we would have access to information, the confidentiality of the fonts and the incensurable feature of journalistic information. A guarantee peculiar would be constitution of bodies responsible for monitoring the quality of the vehicles of communication. Trace it also a panel strict of procedural safeguards, such as public civil action, the security s warrant, and the rights of petition and answer.

O direito social fundamental de acesso à energia elétrica e a atuação estatal

Electrical energy today is an essential element in the life of any human being. Through the access to electrical energy it is possible to enjoy dignified conditions of life, having in mind the possibility of making use of minimal material conditions of life. The lack of access to electricity is directly linked to poverty and degrading conditions of life, in which are some communities in Brazil, especially the more isolated from urban centers. Access to the electric service is a determining factor for the preservation of human dignity, constitutional principle inscribe in the art.1 of the Federal Constitution, and the promotion of development, being a right of everyone and a duty of the State to promote universal access. For that reason, focuses mainly on the analysis of their setting as a fundamental social right and its importance for national development. For this, the theoretical and descriptive method was used, with normative and literary analysis, in particular the Constitution of 1988. This study also discusses the form of action of the State in the energy sector, to give effect to the fundamental social right of access to electricity, the characteristics of public service and the principles that guide it, in addition to the role of public policies in universalization of access, in particular the analysis of the Program Luz para Todos, and the function of regulation in the implementation of these policies and the provision of adequate public services.

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

O município brasileiro e o direito fundamental do acesso à justiça: a prestação da assistência jurídica municipal ao necessitado

This scholarly work aims to investigate the feasibility and constitutionality of access to justice through the provision of full and free legal assistance by the Brazilian municipalities. Investigates the historical aspects of federalism in a global context, emphasizing the contributions left by American federalism. In the Brazilian context, emphasizing the importance of municipalities as federal entities and their outstanding characteristics, while addressing regional issues of federalism. Leanings to the more detailed analysis of the Brazilian municipalities, contextualizing its legal status, its independence and its constitutional powers. It is emphasized in the same way, the relevant transformations of Brazilian municipalities over the last twenty years of this Constitution of the Federative Republic of Brazil in 1988, especially the various constitutional amendments that affected the local autonomy and budgetary aspects, fiscal and skills, bringing significant changes to the municipalities. It is an approach to the concept of justice and deepening the studies on the fundamental right of access to justice in its various connotations. In this vein, it is a study on the legal advice provided in Brazil, especially the powers of the Public Defender of the States and Union, as well as the provision of such public service by Brazilian municipalities and its relevance to citizens in need. At this point, it deepens the relevance of the theme of this dissertation earning the implications of municipal performance in the provision of legal assistance provided to the needy, and the activity of the Municipal Attorney or legal counsel in conducting such a task and its implications for legal and procedural especially on the constitutionality or otherwise of the conduct of such public service, confronting the constitutional articles that are correlated with the subject. Within this context, evaluates the municipal legal assistance under the test of constitutionality, in particular the assistance given by the Executive, through the Municipal Attorney or specialized secretariats and that provided by the Legislature, although it only has the typical functions of legislating and control the municipal accounts, comes in a few municipalities in Brazil deploying sectors with the performance of legal services to the needy. At this point the thesis, one wonders if some important aspects of this activity such as political influence and patronage, very common in day-to-day municipal prosecutors and legal advisers, public employees or occupying commissioned positions within the municipal administrative structure in several municipalities throughout Brazil. Finally, there will be a conclusion as to the constitutionality of the service being done by presenting proposals and recommendations that may improve the municipal legal aid, allowing a constitutional backing to this important service is being provided in capital cities and municipalities throughout the length of Brazil

Acesso à justiça enquanto direito fundamental: efetivação pela defensoria pública

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