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.

Responsabilidade social: visões e perspectivas de empresários do segmento industrial do Rio Grande do Norte

The theme Corporate Social Responsibility is relatively recent both in the academic field and in the business practice. Because of the lack of socialization of experiences and precision of concepts, there are gaps regarding the understanding of the subject and, also, how to conduct operations. This study just seeks to investigate such matter, focusing applications of social responsibility in business. It takes, as empirical field, winners of the PSQT - SESI Prize of Quality at Work in Rio Grande do Norte (2002-2007) in order to systematize the various approaches on the issue, aiming to reveal subjective visions and perspectives of the theme. It is characterized as a qualitative study, carried out by structured interview. The universe was composed by 15 companies. It was used analysis of content categorical as an axis for the interpretation of the information. Three approaches guided the analysis: Business Ethics, (normative); Business & Society (contractual); Social Issues Management (strategic). The findings are related in three ways: 1) reasons for the CSR practice; 2) the results obtained; 3) the means of CSR. It was found that the award participation occurs, mostly, linked to SESI invitations, so, as an articulated movement of industrial corporations in Brazil it occurs, also, because of the organizational commitment with the society and the possibility of internal and social growths and because of the importance attributed to the report as an instrument of consultancy. There are no indicators to check impacts of organizational interventions, in spite of the existence of planning for the actions. Social responsibility appears as a tool to reinforce the organizational image and to increase satisfaction of the employees. There is a tendency of large and medium firms to a contractual commitment while the small and the micros firms are on strategic or normative level. The analysis of the perspectives of social responsibility future revealed trends towards for strategic approach

Qualidade dos empregos e a carcinicultura marinha nos laboratórios da praia de Barreta/RN

To present research had for objective to study the quality of the employment in the maturation Laboratories and larviculture of the Beach of Barreta/RN, adopting for so much the criteria used by Reinecke(1999) to characterize a quality employment: surrender, benefits non salary, regularity and work reliability and of the wage, contractual status, social protection, work day, intensity of the work, risk of accidents and of occupational diseases, involvement in linked decisions to the section work, possibility for the development of professional qualifications. Of the exam of the data it was verified that the generated employments are considered employments of good quality. However, this result should be analyzed to the light of a context of extreme informality and of precarization of the work. Therefore, the results should be relativized. He/she/you imports to retain that one of the limitations of the study resides in the impossibility of generalizing the data for the whole section of the sea carcinicultura. In spite of that fact, he/she is considered that the objectives of the research were assisted fully and that the characterization of the profile of the employment generated by the section of the shrimpculture it is extremely important for the drawing of public politics gone back to foment this activity.

Desenvolvimento como acesso às políticas públicas: a reforma do estado e a concretização dos direitos prestacionais

The state s evolution, after its liberal and the social stages, arrives at the post-social state, also regarded as regulatory state, which, in order to accomplish the state s aims, employs indirect interventions in the economy. The new model of administration adapts principles and concepts form the private sector such as the quest for efficience and tangible results, also striving for the decentralization of state s power to improve effectiveness before the new paradigm of handling of affairs of public interest. Present state derives its legitimacy from the efficiency principle, the legitimacy of the public administration cannot be limited to an analysis of legality, but the fulfillment of the ends envisaged by the public authority on its policies. These public policies have the objective of satisfying fundamental rights of the citizens. The access to public policies set by states as a way of enjoyment of the aforementioned rights constitute a legal and demandable path of development. The creation of public policies and the access to them must abide to the efficiency principle. This access must be taken unther the principles of legal and material equality, inasmuch as the liberty and real liberty. The access must also be observed as a matter of limited resources to grant, in reality, the access and enjoyment of these rights. The demandable nature of the access to public policies binds the public authority into broadening the range of these policies to every one who needs them. Thus, in this spectrum, the role of the Regulatory State, as the legal instruments for access of public policies as a legal path to development, is analyzed in the present work

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

Dificuldades e/ou facilidades vivenciadas pelos profissionais que compõem a Estratégia de Saúde da Família

Descriptive and quantitative study, with the objective of review the positive and negative aspects experienced by professionals working in the Family Health Strategy (ESF) of Ceará-Mirim town, at Rio Grande do Norte state. The population included 190 healthcare professionals that integrate the family healthcare staff and the data-collection occurred in a meeting at their workplace, with the implementation of a questionnaire. Results were organized in Microsoft Excel spreadsheet software, with descriptive statistical analysis in tables, graphs and tables through frequencies, averages values and standard deviations. There is a predominance of females (n = 137) and higher rates in almost all professions, and higher average age (38.9%, SD = 7.8) and income wage (average = 10) in the medical category. Regarding the more developed activities, for physicians and nurses are the healthcare actions in the Unit, the oral hygiene for dentists, the immunization for auxiliary nurses (Aux-N), educational meeting for the dental office assistants (ACD), and home visitations to community-based health workers (ACS). About the easiness of work, 93.2% said to be presence of professionals with a personal profile in public healthcare; about the difficulties, 86.8% of professionals cited the unavailability of material, followed by salary range reported by nurses (80.9% ), dentists (80.0%), physicians (73.3%), ACS (83.1%), and Aux-N (90.5%). In relation to working conditions, the unavailability of materials was the most mentioned, with the exception of dentists who reported improvement in wages. We still identify among these difficulties: the drugs availability regarded as first grade obstacle by ACS and physicians, the type of contracts in second grade cited by the ACD and dentists and, in third grade, the salary range cited by dentists and auxiliary nurses. It is concluded that the difficulties and easiness faced by ESF professionals are divergent among themselves. For physicians and nurses, whose healthcare actions become directed to specific groups, the individual and the family, their difficulties relate to the unavailability of materials. For dentists, whose actions more quoted were topical application of fluoride and supervised toothbrush, their greatest difficulty is the salary range. As to the Aux-N, ACD and ACS, for all of them the unavailability of materials has hindered the implementation of their activities in ESF

A percepção da fiscalização dos contratos de mão de obra terceirizada pelos agentes envolvidos nesse processo no âmbito da Universidade Federal do Rio Grande do Norte: uma análise sob o modelo do principal-agente

Outsourcing has emerged as one of the new ways of guiding the work. For its advantages and be consistent with the paradigms of managerial reform, outsourcing also started to be used in the Public Administration. However, taking into account the particularities of the latter, some issues are relevant when outsourcing concluded with the State. Gains notoriety, for example, the step of monitoring these contracts, to the extent that, from this activity, we can avoid the negative effects of outsourcing like the fact that the state will pay for labor and wage liens that are obligation of the company providing the services. This study aims to understand the perception that this process is under the Federal University of Rio Grande do Norte, from the point of view of different stakeholders, also explaining the motivations that these agents have to perform the supervisory process. As a theoretical basis was used the Agency Theory, which reinforces the supervisory activities as a necessary means to minimize moral hazard and adverse selection, seeking to understand not only the different motivations tax contracts to properly perform their duties, but also analyze other phenomena arising from this contractual relationship. To achieve the proposed objectives, were taken a literature review and a presentation of how to organize the management and oversight of contracts in UFRN. The methodological procedures included questionnaires and interviews with those involved in the process. After analyzing the results obtained in the survey instruments , and also based on the laws, regulations and instructions governing the procurement process within the UFRN, it was concluded that the process of overseeing the outsourcing of labor contracts in UFRN is not fully institutionalized, some points should be strengthened in order to have the consolidation of this process, highlighting the need for training of UFRN servers that act as tax, the knowledge that the contractual penalties are applied effectively, the need that there is a supervisor of tax of contractors and also the realization of the rotation system of outsourced employees

Responsabilidade social: visões e perspectivas de empresários do segmento industrial do Rio Grande do Norte

The theme Corporate Social Responsibility is relatively recent both in the academic field and in the business practice. Because of the lack of socialization of experiences and precision of concepts, there are gaps regarding the understanding of the subject and, also, how to conduct operations. This study just seeks to investigate such matter, focusing applications of social responsibility in business. It takes, as empirical field, winners of the PSQT - SESI Prize of Quality at Work in Rio Grande do Norte (2002-2007) in order to systematize the various approaches on the issue, aiming to reveal subjective visions and perspectives of the theme. It is characterized as a qualitative study, carried out by structured interview. The universe was composed by 15 companies. It was used analysis of content categorical as an axis for the interpretation of the information. Three approaches guided the analysis: Business Ethics, (normative); Business & Society (contractual); Social Issues Management (strategic). The findings are related in three ways: 1) reasons for the CSR practice; 2) the results obtained; 3) the means of CSR. It was found that the award participation occurs, mostly, linked to SESI invitations, so, as an articulated movement of industrial corporations in Brazil it occurs, also, because of the organizational commitment with the society and the possibility of internal and social growths and because of the importance attributed to the report as an instrument of consultancy. There are no indicators to check impacts of organizational interventions, in spite of the existence of planning for the actions. Social responsibility appears as a tool to reinforce the organizational image and to increase satisfaction of the employees. There is a tendency of large and medium firms to a contractual commitment while the small and the micros firms are on strategic or normative level. The analysis of the perspectives of social responsibility future revealed trends towards for strategic approach

Qualidade dos empregos e a carcinicultura marinha nos laboratórios da praia de Barreta/RN

To present research had for objective to study the quality of the employment in the maturation Laboratories and larviculture of the Beach of Barreta/RN, adopting for so much the criteria used by Reinecke(1999) to characterize a quality employment: surrender, benefits non salary, regularity and work reliability and of the wage, contractual status, social protection, work day, intensity of the work, risk of accidents and of occupational diseases, involvement in linked decisions to the section work, possibility for the development of professional qualifications. Of the exam of the data it was verified that the generated employments are considered employments of good quality. However, this result should be analyzed to the light of a context of extreme informality and of precarization of the work. Therefore, the results should be relativized. He/she/you imports to retain that one of the limitations of the study resides in the impossibility of generalizing the data for the whole section of the sea carcinicultura. In spite of that fact, he/she is considered that the objectives of the research were assisted fully and that the characterization of the profile of the employment generated by the section of the shrimpculture it is extremely important for the drawing of public politics gone back to foment this activity.