A concretização do princípio da igualdade em matéria tributária por meio de sentenças aditivas

This work aims to study the additive decisions, a type of juridical interpretation developed in foreign legal systems and which are known in Italy as adittive sentences. Thefore, this dissertation is based on theorical studies developed around the subject in Italy and Brazil. Considering the fact that the fundamental rights face a problem of implementation, being decreased its normative force when there are legislative partial omissions lacking constitutional justification creating privileges to certain individuals or social/economical groups over others, the method of additive interpretation according to the Constitution can be used in order to realize the principle of equality. In tax matters the subject is even more relevant in the way that it represents an important role in the economy. Partial legislative omissions can generate inequalities, favoring certain taxpayers in relation to others in similar legal situation. In these cases the privilege may have a negative impact on economic order restricting values related to the basis of market competition. On those occasions, Brazilian Judges and Courts must exercise their constitutional jurisdiction in order to expand the effects of the legislative omissions, based on the principle of equality by extending the standard to equal tax situations in order to maintain neutrality in taxation

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.

Democracia participativa e regulação econômica: uma questão de legitimidade

This work presents an analysis about the legitimation of independent regulatory commission`s rulemaking power by participation procedure. It is observed that political and administrative decentralization and fragmentation of State, with the purpose of approaching citizens and provide, more efficiently, the functions acquired by the passage of the Welfare State, leads to a deficit of legitimacy (democratic crisis), which is noticeable in the making of legal norms by directors of independent regulatory commission to regulate specific economic sector. However, we understand that this crisis stems from the observation of the contemporary world from dogmas and legal institutions of the eighteenth century, without their evolution and adaptation to the modern world. The legitimacy must be perceived as the justification of power, relation command /obedience, which, from the Modern State, has the democracy as standard. Therefore, just as the world has evolved and demanded political and administrative decentralization to accompany him, it is necessary to the development of the idea of representative democracy (formal legitimacy) to participatory democracy (legitimacy stuff). Legitimacy is not confused with the legality: as the legality is on observance to internal legal system, the "rules of play"; legitimacy, as inputs to be fed into this system, the selection of the different expectations in the environment. Nevertheless, the legitimacy will take place by legality, through introduction of rational and communicative procedures: procedures get fundamental importance because these will be the means to select the expectations to be introduced in the legal system in order to make decisions more fair, rational and qualified towards society. Thus, it is necessary to its opening to the environment for dialogue with the government. In this context, we try to make an analysis of constitutional norms based on systematic and teleological interpretation of these norms to build these arguments. According to the Constitution of 1988, participatory democracy is a result of the democratic principle (sole paragraph of art. 1 of the Constitution), and it is an expression of citizenship and political pluralism, both foundations of Republic (respectively Art. 1st, inc . V and II of the Constitution), as well as the national consciousness. From another point of view, that principle consists of an evolution in the management public affairs (principle of Republic). The right of interested participate in the rulemaking process derives both the principle of popular participation (part of the democratic principle) and the republican principle as the due process constitutional (art. 5, LIV and LV, CF/88) and the right to petition (Art . 5 °, inc. XXXIV, "a", CF/88), and it is the duty of the State not only be open to participation and encourage it. Ignoring stakeholder involvement in procedures and / or expressions compiled can be causes of invalidation of the rule of law produced by addiction of procedure, motive, motivation and/or because of the administrative act. Finally, we conclude that the involvement of stakeholders in the process of making rules within the independent regulatory commission is the legitimacy and the validity of rules; and that, despite of the expressions do not bind the decision making, they will enter the system as juridical fact, balancing the field of technical discretionary of agencies

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

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

Sobre a constituição do sujeito: uma análise comparativa entre a psicologia sócio-sociologia do conhecimento de berger e luckmann

This study investigated how the process of the constitution of the subject is interpreted in the formulations of the founders of socio-historical psychology (Lev S. Vigotski, Alexei N. Leontiev and Alexander R. Luria) and in the sociology of knowledge of Peter Berger and Thomas Luckmann. These two theoretical perspectives, despite having different philosophical formulations as ontological and epistemological intentions (socio-historical psychology, historical dialectical materialism; the sociology of Berger and Luckmann and phenomenology) arrive, however, at the same basic conclusion about the social nature of the subject. The objective of the study, therefore, was that of identifying the differences and convergences between the two perspectives and then, try to determine the possibility of a theoretical synthesis between them in relation to the constitution of the subject. At the same time, we intended to analyse the implications of this possible synthesis in order to comprehend the manner in which the ideology functions in human societies as thought by Louis Althusser and Alípio de Sousa Filho. We arrived at the conclusion that, despite being incompatible from the ontological and epistemological points of view, a synthesis is possible between socio-historical psychology and the sociology of knowledge of Berger and Luckmann in relation to the conception of society and the comprehension of the process of the constitution of the subject. Starting from the philosophical intentions of socio-historical psychology, it is possible to incorporate, enriching points such as: Berger s and Luckmann sconception of society and the interpretation of the process of constitution of the subject. This possible synthesis, when interpreted in light of the reflections of Althusser and Sousa Filho on the phenomenon of ideology in human societies, is constituted in a real unveiling of the concrete provisos by which the ideology acts in human societies in order to transform biological examples of the human species in specific social subjects

ELOY DE SOUZA: UMA INTERPRETAÇÃO SOBRE O NORDESTE E OS DILEMAS DAS SECAS

The thought of Eloy de Souza is studied (1873-1959), that left a significant intellectual production in the journalistic, cultural and politicial scope on the Northeast and the dilemmas of the droughts. Through the method of content analysis, his journalistic and literary speech is investigated, looking at to understand the elaboration and/ or reiteration of categories, of representations and of values; it is verified how was conceived the constitution of the political thought and which is it´s principal slopes; the parliamentary speech, present in his interventions is analyzed in plenary session, participation in commissions and in his projects, particularly in the thematic area of the droughts. It is verified that his work is built in a political and ideological perspective inserting the bourgeoisie landowner's interests and Northeastern commercial and of it´s political strata, inside the historical block of agro-industry power that has as irradiation focus the area of the coffee represented politically by the oligarchies person from São Paulo and Minas Gerais. In that sense, two crucial categories emerge: the droughts and the country, as the Northeastern and Brazilian man's synthesis, with their resistance capacity and adaptation, and their creative effort in an adverse enviroment, that Eloy de Souza started to insert in his political speech. However, the vision that he passes of the "country suffer", expresses a certain idealization of a lifestyle that corresponds to a traditional dominance, that he want´s to be reproduced. Although it looked for the solution for the drought through the modernization of the economy by the adoption of advanced methods as the irrigation, his concern went back to the conservation of the economical and cultural political hegemony of that elite. Thus, his inquietude with the process of integration of the subordinate sections, justifies his consensual speech, harmonic as organic intellectual of the agrarian-commercial bourgeoisie of the Brazilian Northeast

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 desenvolvimento sustentável na ordem constitucional e sua promoção através do planejamento urbano

The man, being subject and object of their changes, has passed by many process to find a better life way. Since your existence, he finds to live in groups for make easy your life and make concrete yours desires. All by history, when the individual´s rights was establishment, collectives and lonely way, contribute for evaluate the relationship between individuals and they own, and them and state, which has a duty to those, positive or negative, depending on the case. The circle of fundamentals rights has been sustainable development and the concept of growth economy associated to the environment protection. This association reflect a apparent conflict between values very distinct, but the constitutional interpretation can be reunite both of them and make it live in harmony; values of environmental order and economical order can be exist together, as long as the state contribute to this. On the city, where the most of relationships happening, the urban plan appear how a effective way of sustainable development, finding the harmony between the growth economy and environment protection. To effective the socials functions of the city (inhabit, circulate, work and entertainment) and the citizen´s life quality, the city is the scenery that show how the urban plan, across established previously legal instruments, like the governmental public politics, to effective the right to development, right of third generation. The director plan how effective tool for local needs - obligation defined by Citizen Statute that contribute for the program linked defined by the urban plan. The state´s intervention on the private sector of citizen, and the restriction on their rights are be justified by the collective´s rights and their quality of life. So, in front the urban scenery has been the plan to make social functions of city, the healthy way of life, which is the sustainable development

Desvios de finalidade no Direito Constitucional Tributário brasileiro: aspectos estruturais e teleológicos da tributação na Constituição Federal de 1988

This work deals with considerations regarding common types of tax misuse that are present in the 1988 Brazilian Constitution. Thus, the work aims to unveil dogmatic features present in these practices that are considered illegal and are beset with vices such as power misusage. The research also aims to acknowledge the unconstitutionality issues regarding other guidance on behalf of goods that are responsible for the gradual positive approach realized by the 1988 Brazilian Federal Constitution. Thus, the work systematically used methodological procedures that aim to interpret the logical premises present as in the structure proposed by incidence rule matrix as in Ihering´s correction criteria considered as effective in itself. This is done also considering themes such as the Brazilian Public Tax legal matters. The work also performs a teleological debate of the Brazilian National Tax System as well as other related themes. It is understood that power misusage or any regards increase in aliquots. This can be observed in the quantitative criteria present in central aspects regarding taxes that are described in the constitutional regime either regulatory or induced nature, such as §1º, of the normative information present in article number 153 which is considered predominantly as tax raising such as pointed out in the 1988 Brazilian Constitution. On the other hand, it is seen that the type of misguidance with goods is understood as a practice that deviates as well as cuts connection with (rectius, unattaches) tax resources that are gathered and destined to specific constitutional purposes. At the end, the work deals with issues that aim to identify possible causes that lead to the use of norms and patterns that regulate such deviations. The research emphasizes ratio issues that are present in tax inspection proposals and invalidation that aim to restore the logical compatibility of these normative actions included in the Constitutional Tax Legal matters that was put forth by the 1988 Brazilian Federal Constitution

O piso salarial nacional: a valorização do professor na Constituição de 1988

The paper investigates the legal mechanisms used by the Legislature and the Executive to implement the constitutional principle of the teacher s minimum wage, which is proclaimed in the Constitution as a strategy of professional appreciation for this category. The text demonstrates that the legal mechanisms used to value the teacher were: the 1988 Constitution, the constitutional amendments to this Charter updated and modified the original text in relation to the matter, and finally, the Minimum Wage Law . Article nº 206 of 1988 s Federal Constitution established that basic education teachers, who work in public schools, would be entitled to a national minimum wage. Law nº 11.738/2008 ( Minimum Wage Law ) regulated the matter and made other determinations on the relationship between the State and the teachers such as the establishment of parameters for the distribution of the workload of teachers. Based on this law, since 2009 the minimum wage has been set annually by the Federal Government. However, state governments and municipalities throughout Brazil protested prescriptions contained in the Minimum Wage Law . In this context, some governors and mayors led the Supreme Court regarding the constitutionality of this law. The complainants considered that there was unconstitutional by the following: definition of the teacher s workday, which in the complainants point of view was competence of local governments; ensuring that teachers receive salaries tied to the minimum wage with retroactive effect; transformation of the minimum wage in basic salary, lack of sufficient budget in the states and municipalities to honor with the new values to be paid to teachers and, finally, determining workload for the teacher to perform other activities besides classroom activities. At the trial held at the STF the majority of Ministers rejected the claim and considered that the Minimum Wage Law , taken together, was constitutional. However, this decision did not alter the position of the managers or the interpretation of the ministers who agreed with the unconstitutionality of some aspects of the law. This means that one law can present differences in interpretation between ordinary people and among members of the Judiciary. The search showed the following conclusions: the law is not a definitive parameter of justice, because it is deeply linked to various interests; the development, implementation, and judgment of laws dealing with minimum wage of teaching are linked to historical and cultural aspects of society; the demand for enhancement of teacher and setting a minimum wage has only emerged in the late twentieth century, a fact explained in this work based on data that indicate the recent concern of Brazilian State with schooling a phenomenon typically Republican and with the professionalization of teaching emerging concern from the knowledge society; the Legislative and Executive search mechanism to implement the minimum wage of the teachers because of the contemporary need for professionalization of teaching

A Constituição Federal de 1988 e a integração regional : o desafio da harmonização tributária

As an effect of the growing interdependence in international relations, regional integration was conceived to face globalization, with a remarkable influence in politics and law, since the first steps of the European experience. In Latin America, regional integration ideas have blossomed in the 60 s. Among its experiences, MERCOSUL is the one with the most advanced objectives. However, MERCOSUL has not managed to achieve the objectives planned nor moved forward the integration process. Differently of what happened in Europe, in MERCOSUL the common market projected is concluded. It faced many disappointments throughout its brief history. As it matters to law, those were caused by the absence of supranationality, a mechanism that would allow MERCOSUL s decisions to be directly binding in the States with no need of bureaucratic proceedings to incorporate them to national legal systems. Among Latin American States, Brazil is probably the most resistant to integration process, due to Federal Constitution 1988 rigidity and legal professionals conservadorism towards opening legal system to international law. In Brazil hermeneutical standards are always based on national sovereignty and international law is referred as less important. The problems become more visible relating to taxation, a subject that plays an enormous role in integration process for its economic impact, demanding the execution of tax harmonization policies compatible to the integration levels aspired. However, because of the large number of tax rules in the Federal Constitution, structural changes initiatives face difficulties in order to be implemented. Actually, after two Constitutional Reforms on taxation, Brazil has not yet succeeded on promoting the necessary adaptations to regional integration. The research has confirmed the hypothesis that supranationality has indispensably to be adopted if Brazil really desires to move forward the integration process. But it has also been demonstrated that there are hermeneutical paths suitable to the constitutional profile which allow the adoption of supranationality, through the revision of the sovereignty traditional concept

Currículo em "movimentos" a constituição do saber escolar pelos índios Pankará da Serra do Arapuá - PE

Coordenação de Aperfeiçoamento de Pessoal de Nível Superior

Cartas oficiais norte-riograndenses dos séculos XVIII, XIX e XX : constituição e caracterização de um corpus diacrônico

The diachronic studies marked the first decades of the 20th century in Brazilian linguistics, passing by an ostracism period after the 50s. Mainly from the 90s especially with the project, created in 1997, Para a história do português brasileiro (PHPB), which has systemized, in national ambit, the programme related to the area of diachrony the historical studies retake forces and have gradually increased since then. Our work is set in the new scene of Brazilian historical linguistics and it is associated to two research programmes: i) the constitution of a diachronic corpus; ii) the diachrony of text and discourse. As regards the first programme, we made effort to constitute a diachronic corpus of official letters about Rio Grande do Norte, we called cartas oficiais norte-rio-grandenses, written in 18th, 19th and 20th centuries. The chosen for bureaucrat letters occurred for they represent a textual category very productive in historical contexts, mostly 18th and 19th centuries, in which the command of writing was the least and also because they bring, almost always explicitly, the information of where, when, for whom and from whom, as remembers Fonseca (2003). The rules for constituting the corpus were based, although not strictly, on the orientation from PHPB. In respect to the second programme, we set up on the ideas of coserian base came from the studies on discourse traditions (TD) (Koch, 1997; Kabatek, 2006) amongst which that the texts are shaped so as to follow their own tradition (Coseriu, 2007), and we turned to Diplomatics (Belloto, 2002) in order to do the characterization of this corpus by the application of concepts from Diplomatics and TD as well as by the presentation of the structures that form those official letters: their textual genres, a kind of TD, with their macrostructures; and some of their formulaic expressions (microstructures), another sort of TD. This stage of characterizing will pay attention, as far as possible, to the dynamic between tradition and innovation that happen in the actualization of those textual structures along the centuries. This work intends to contribute with the researches connected to Historical Linguistics in Rio Grande do Norte, more specifically the ones related to the constitution of diachronic corpora and to TD; and with the study of official documents, textual category about which there are almost no studies (cf. Silveira, 2007)

Um ser (tão) de vozes: o estilo e o acabamento estético na poesia de Patativa do Assaré

The present study aims at investigating the style of the Cearense 1poet Patativa do Assaré in his poetic discourse Cante lá que eu canto cá (2004). Such choice is due to the fact that Assaré‟s poetry is full of regional identities as well of different voices. In other words, our purpose is to analyze the way the author aesthetically expresses his own voice and the voice of others in his work. This study is based on a social and historical model of language, with language construed as a discourse practice with emphasis on the key concepts of style, voices, subject and dialogic relationships (BAKHTIN, 1992, 2003, 1995). Our documental research is situated within the area of Applied Linguistics and presents an interface with Literature. We start out with the premise that in this type of investigation knowledge is built from language. In this sense, we must consider the social relationships in which language is produced, as well as the world which (in) determines, interferes, represents, interpenetrates or else, reformulates language and the indisciplinary character of the research

A interpretação semântica dos auxiliares modais poder, precisar e dever: uma abordagem da semântica cognitiva

Apresentamos, neste trabalho, com base na semântica cognitiva, uma análise do significado, em contexto, dos auxiliares modais poder, precisar e dever. Analisamos 120 textos produzidos por candidatos ao vestibular e por alunos do ensino fundamental, como resposta da questão número três da prova discursiva de Língua Portuguesa do vestibular 2005 da UFRN, que pede aos candidatos para explicitar a diferença de sentido entre três frases, observando o uso desses três verbos. Consideramos que um item lexical não é incorporado a uma representação lingüística semântica fixa, limitada e única, mas antes, é ligado a uma representação lingüística semântica flexível e aberta que provê acesso a muitas concepções e sistemas conceituais dependente de cada contexto determinado. Com base em seu significado, um item lexical evoca um grupo de domínios cognitivos, que por sua vez, apresentam um determinado conteúdo conceitual. Isto implica em afirmar que a rede de significados lexicais vai variar conforme o conhecimento de mundo de cada um (LANGACKER, 2000). A relevância deste trabalho é proporcionar uma contribuição para a descrição semântica do português