A boa-fé objetiva na concessão dos incentivos fiscais / Humberto Antônio Barbosa Lima

This essay analyzes tax incentives concepts and existing discussions on national and foreing doctrine, especially in countries that influence our legal culture, such as Germany, United States of America, Spain, Italy and England, providing a detailed study about the requirements that must be observed to ensure that there be a legitimate concession of the same. All this using as argument the Constitutional Charter and the development of the Law, mainly through the principle of objective good faith, which acts as the limiting principle of administrative discretion in granting such tax incentives, as well as creative element of the new duties for the public managers in order to be more effective, efficient and transparent compliance with the pact between the government and society and the objectives pursued by the last. Always chasing a strong argument through a broad historical and philosophical analysis of the institutes discussed. Thus, through studies that reveal the necessary incidence of objective good faith in granting tax incentives to achieve the constitutional purposes, this work does not merely disclose what is wrong, but provides solutions to modify reality hitherto existing, ie, introduces ways to reduce the encumbrance of the odious and ineffective tax incentives in society and to redirect these values unjustly destinated for obscure interests to achieve the real reasons for the existence of tax incentives, especially economic development through the reduction of regional and social inaqualities and poverty eradication

A aplicação do acordo sobre subsídios e medidas compensatórias pelo estado brasileiro

The Multilateral Trading System has evolved and presented new international mandatory rules to States. Along with the World Trade Organization constitutive treaty, Brazil has incorporated the Agreement on Subsidies and Countervailing Measures (ASCM) in the national legal system. That treaty limits de scope of subsidies concession by governments since this practice can constitute a mechanism of commercial disloyalty, affecting national industrial development in the importing country. At the same time, the multilateral agreement grants defense legitimate instruments to States, among them the possibility of domestically and unilaterally imposing countervailing measures to subsidized products that enter the national territory. Since the issue concerns both international and domestic level in complementary grounds, this research, besides investigating the treaty related obligation, aims at studying the national legal fundaments to ASCM s application by the Brazilian State. Therefore, the essential point resides in the State s conduction of its international trading and also in its available and constitutionally established mechanisms of economic intervention. State s regulating power reveals itself as a fundamental prerogative to succeed in the internalization of international agreement s requirements in the domestic legal system, which represents a basic prerequisite to the implementation of countervailing measures. Once the whole normative outlines are apprehended, this study shall scan the administrative process of trading defense main elements, along with the means of controlling public administration acts. The action taken by the public organs that directly intervene in foreign trade shall be analyzed as well, so as to enable reasoning if the unilateral application of countervailing duties by the Brazilian State is happening on legitimacy grounds

Direito à moradia em cidades sustentáveis: parâmetros de políticas públicas habitacionais Natal 2013

The right to housing is included in several international human rights instruments and in Brazilian legal system integrates the constitutional catalog of fundamental social rights (art. 6) and urban development policy (art. 182 and 183). Besides, it is for all federative governments its effectiveness by building programs and improvement of housing conditions and sanitation (art. 23, IX), which justifies the investment in urban planning and public policy of housing affordability because they are tools for achieving this right. Newer strategies in this area have been based on tax incentives, combined with the mortgage as a way to induce the construction of new housing units or reform those in a precarious situation. However, there is still a deficit households and environmental soundness, compounded with the formation of informal settlements. Consequently, we need constant reflections on the issue, in order to identify parameters that actually guide their housing policies in order to meet the constitutional social functions of the city and ensure well-begins of its citizens (art. 182). On the other hand, the intervention of the government in this segment can not only see the availability of the home itself, but also the quality of your extension or surroundings, observing aspects related to environmental sanitation, urban mobility, leisure and services essential health, education and social assistance. It appears that the smoothness and efficiency of a housing policy condition to the concept of adequate housing, in other words, structurally safe, comfortable and environmentally legally legitimate, viable from the extensive coordination with other public policies. Only to compliance with this guideline, it is possible to realize the right to housing in sustainable cities

Iniciativa popular na concretização do direito fundamental à democracia

The Participatory Democracy is disseminated throughout the Principle of Popular Sovereignty. Since it spurs the participation of the people in the exercise of political power, it emerges as a conciliatory alternative to the Representative Regime - one of questionable legitimacy in account of the distortion it causes on the will of the public. It does so specially vis-à-vis the legislative, where the law is created. It s known that our Constitution (arts. 1º e 14, CF/88) provides for the means through which the members of the public may take part in the political process of the country, for it consecrates the plebiscite, the referendum and the popular initiative, all of them incipiently regulated by the Lei nº 9.709/98. It s our task, thus, to inquire, through deductive reasoning as well as the legal exegeses, the enforceability of the Popular Initiative as a means of popular emancipation, given that it enables the citizens to conscientiously participate in the public sphere. It has also an educational ethos which builds the capacity of individual to act, and, therefore, through thoughtful choices, enhance the legal system. Furthermore, the Lei da Ficha Limpa (LC nº 135/2010) surely represents a milestone in the Brazilian political history, since it accrued from a new way of social interaction allowed by the usage of communication technology on the pursuit of political morality. As a matter of fact, this bill is a clear example of how a legal act was legitimately proposed through Public Initiative. Hence, it s beneficial to actually make use of the Public Initiative, under the influence of the New Constitutional Hermeneutics, with a view to supporting social claims and promoting a dialogical relationship with the State in order to help it in the decisionmaking process. Thereat, we can achieve important civic spaces through which the fundamental right to democracy shall be materialized, tearing apart the old paradigms of inequality and, thus, promoting social justice

Parâmetros de concretização judicial do direito fundamental à saúde no fornecimento de medicamentos

In Brazil, social rights have always been considered secondary legal categories, whose implementation could wait for the pending of political decisions. At the end of the Second World War, International Law emphasizes the protection of human beings, raising his dignity as a legal pillar of the legal orders and one of the main foundations of Constitutions. At the post-positivism Constitutionalism, the realization of social rights receives special attention with the assumption of supremacy and normativity of the Constitutions, while the judiciary participates in the realization of democracy, not only as applicator of laws, but also as the guardian of constitutionality of the acts and administrative omissions, creatively contributing to the constitutional achievement, filling gaps and normative state omissions. In this aspect, the supply of medicines, whose costs can not be supported by the individual, keep a close connection with the right to life, health and dignity of the human being, as the subject of numerous lawsuits directed against the Public Administration. Such phenomenon has caused intense debate regarding judicial activism and legitimacy of these decisions, particularly on the need to define what are the limits and possibilities considering the principle of separation of powers and the principle of reserve of the possible; bieng this the problematic developed in this research. Thus, this research aims to verify the legitimacy of judicial decisions that determines to the Public Administration the compulsory providing of medicine to those who can not afford the cost of their treatment, as well as, contribute to the dogmatic constructions of parameters to be observed by judicial interference. Regarding the methodology, this research has an investigative and descriptive caracter and an theoretical approach based on bibliographical data collection (judicial and doutrine decisions) that received qualitative treatment and dialectical approach. As a result, it is known that the judicial decision that determines the supply of medicines to those individuals who can not afford them with their own resources is legitimate and complies with the democratic principle, not violating the principle of separation of powers and the reserve of the possible, since the judicial decison is not stripped with an uniform and reasonable criteria, failing to contain high burden of subjectivism and witch signifies a possible exacerbation of functions by the judiciary, suffering, in this case, of requirement of legal certainty. It is concluded that the Court decision that determines the government the providing of medicine to those who can not afford the cost of treatment should be based on parameters such as: the protection of human dignity and the minimum existencial principle, the inafastable jurisdiction principle; compliance critique of the possible reserve principle; subsidiarity of judicial intervention; proportionality (quantitative and qualitative) in the content of the decision; the questioning about the reasons for non-delivery of the drug through administrative via; and, finally, the attention not to turn the judiciary into a mere production factor of the pharmaceutical industry, contributing to the cartelization of the right to health

Os crimes de mídia no paradigma democrático constitucional

The criminal responsibility of the media is analyzed when the criteria for production of news and events involving public safety are produced without considering the technical, legal and ethical practice of journalism in the media factors. Freedom of speech, expression of thought, necessary for professional qualifications and constitutional limits, reaching criminal constitutional principles and the possibilities of criminal liability for offenses practiced in the media are present as key factors legal dialogue in this work. The judgment of the Supreme Court on the unconstitutionality of Law nº. 5.250/67 called Media Law caused a gap in the national legal system, forcing the use of the criminal code to address issues that involve crimes produced in media professional performance. The presumption of innocence is ignored by the professional media during a police investigation where the information published does not respect, including constitutional guarantees: the right to privacy, honor and image. The right to information and the duty to inform media are worked in its constitutional aspect, considering that the same information should be produced is guided by the quality and guiding principles of truth. The constitutional concept of media is presented as information with the appropriate language of the news media, produced and disseminated through the vehicles of mass media, whether in print or digital platform. The presented model of the legal right to information is outlined from a constitutional hermeneutics, increasing the production of news as a result of the occupation of journalist in different news platforms, guaranteeing the quality of this prolific law. Under the Freedom of professional activity of the journalist, the constitutional limits are addressed in line with the reality of (non) regulation of their profession, considering the constitutional abuses committed in the exercise of that activity linked to communication fences. Jusphilosophic field reaches the limits of the duty of truth in journalism as a tool for spreading news, respect the audience and compatibility with the constitutional state. Using the conceptual and doctrinal aspects, this criminal offense is parsed from the journalistic practice and the publication of news involving public safety, with the hypothetical field consummation of that crime through the eventual intention. As a form of judgment against these crimes produced in honor media presents the court of the jury as a legitimate form of democratic decision

Formação moral das crianças: construção de regras fundamentais aos valores do Movimento dos Trabalhadores Rurais Sem Terra (MST)

The acquiring process of morals on a person is one of the most important aspects of his Social Identity. The basis for his ethics and moral choices are built when he interacts with the world. A child that interacts with participants of Movimento Sem Terra (MST) movement that fights for the Land Reform and the transformation of the society may have the opportunities to acquire the culture, morals and ethics of this movement. Based on this understanding, this work intends to comprehend how children think and incorporate the rules that are the base of the values and principles of MST, considering the diversity of the situations, the limits and the possibilities to experience these values in their everyday life in the Movement. To understand how the process of cognitive construction of the rules takes place in a child, it is important to consider the theories of Jean Piaget. According to him, morals development follows a sequence: the anomie (0 to 2 years old), marked by the absence of rules; the heteronomy (2 to 6/7 years old), where takes place the adoption of rules due to exterior obedience, such as a relative, an institution or a movement; and the autonomy (from 6/7 years old on), in which rules are considered legitimate. All the children in this research have relatives working at MST. The research has two parts. We have first observed the behavior of three groups of children (beyond six years old) while they were involved on their normal activities (kindergarten) activities. On the second moment, we have interviewed 20 children (between 3 and 10 years old). We used flashcards containing scenes; we also told stories and asked moral questions involving the character s behavior. We have noticed the unilateral respect and extern coercion are between the definers of the moral decisions of a child. The empathy and the reduction of the egocentrism help seeing the situation of the point of view of other, although it doesn t mean that one is going to accept others point of view. In the taking decision of the child other factors are also considered such as the space of socialization (family, school). Though the children don t work or take part at MST activities, they have already opinions about involved people behaviors. The interaction with relatives and teachers is one of the most important aspects to encourage them elaborate moral understandings according to the ethics of this movement

A produção biopolítica do corpo saudável: mídia e subjetividade na cultura do excesso e da moderação

Coordenação de Aperfeiçoamento de Pessoal de Nível Superior

A Produção biopolítica do corpo saudável: mídia e subjetividade na cultura do excesso e da moderação

Recognizing the plans left by Foucault as legitimate, for those that the struggle to fight against all forms of way of life subjection takes an important role on human being existence, this thesis questions the impacts of body planning on health specialized media on the production of the contemporary subjectivity. Having the Saúde! magazine as this thesis empirical field, it discusses the subjectivity processes centered on the realization of many bodily practices destined to a perfect body self-construction, finding suitable conditions for a narcissistic development of the new ways of social regulation on hypermodern societies. Our central argument, refering to a specific reflection about the body, media and subjectivity, is that the body promoting over the health specialized media makes possible the creation of new existential territories, configuring the healthy body bio-political production by a subjectivity process open to experimenting and to self-invention. Bodily subjectivity process centered on body self-construction, simultaneously generating human subjectivity singularization and massification, evidencing escape routes to build a body health existential perspective. In this thesis we seek to point not only the historically hegemonic forms of being healthy, but mainly the forces that nowadays question these forms, making possible the thought of other ways to live the health of the body, starting from the subjectivity singularization

Filosofar em tempos de informação

This thesis reflects upon the question of how does philosophy think a particular today, which is not only a legitimate philosophical task but a determinative characteristic of philosophy in general. Today's thought follows two paths: first, an hermeneutical-phenomenological analysis of Martin Heidegger's thought with regards to his own contemporaneity; and secondly, through the analysis of the contemporary phenomenon of Information Technology which in the present work is to be considered a privileged sign of our times and distinctive of the mindfulness of philosophy. Therefore, the starting point is an investigation of Heidegger's thinking on his own era to whom facticity is a way of accessing the fundamental question of philosophy. This thesis is led by three guiding words which hold onto a perspective of unity in Heidegger s lifetime of work: 1. Technicity, 2. History, 3. Language, to thereby develop a characterization of human existence as 1. Technopolitical, 2. Technoscientific, and 3. Technological. Finally, in keeping with this triangular characterization of the human, a philosophical comprehension of our times will be established and drawn by Information Technology illustrating three of its' factual signs that are understood to be the 'Remains of Being' today: The Emptying of Speech (Language); The Emptying of Science (History); The Emptying of The Object (Technicity). Through these nowadays phenomenon, it is possible to maintain a grip on the fundamental question, precisely when the task of philosophy seems to have peremptorily lost its meaning and come to its logical end and to show how philosophizing in the information era is as possible as it is necessary.

Divulgação científica para empoderamento institucional: o discurso da revista Darcy e a midiatização da academia

Science has remained in hegemonic position among the various forms of knowledge that enable us perceive our surroundings. After a growing movement of introversion of the scientific field, which enabled the empowerment of the academy, it is growing today the discussion about the need to spread knowledge of this area to society. Our study aims to observe the discourse of institutional science communication, taking into account the historical conditions that made possible the emergence of science as legitimate observation of nature and of man and also the credibility granted to the media. Therefore, we have as our study object the editorials of the Darcy magazine, for scientific and cultural journalism of the University of Brasilia. We focused on observing the discourse of knowledge sharing by the media, using the concepts of field, from Bourdieu’s work, and Agamben’s "profanation" together with notions from the organizational communication area. Also, the concepts of dispositive, discourse and knowledge-power used are based on the studies from the French school which associate them to the need of thinking power as a relation between what is and what is not said, having Michel Foucault as an important exponent of this area. The research, which uses as a method the Discourse Analysis, shows us a process of mutual validation of the scientific and journalistic discourses, which contribute to the strengthening of the institution itself as well as the scientific field, in texts which have as a backdrop the institutional image and reputation.

Direitos fundamentais sociais no Brasil: desafios e mecanismos para sua concretização

The work referred to above, in order to contribute to the legal issues, economic, political and social of the violation of social rights, performs even firmer approach to various implementation mechanisms of social rights in Brazil. Therefore, it begins the study dealing with aspects and important characters of the rights under discussion, as its normative forecast, concept, classifications; respect of social rights with the existential minimum; the principle of reservation of the possible and the need to use this principle as optimization commandment of state resources and the deficit of the realization of social rights in the country. This, in later chapters, in an interdisciplinary approach, challenges and proposals for the realization of social rights by bringing in each chapter, mechanisms for such implementation. That way, as a general objective, it has been to contribute to the discussed problems, when present proposals for the realization of social rights in the Brazilian context. As specific objectives, as well as record the key aspects of the rights in allusion, the one has to promote the perspective of economic development and taxation as posts instruments that the State must be focused on the promotion of social rights by registering in this context that nonexistent economic development without reducing poverty, misery and social inequality and adding that there should be a directly proportional relationship between the tax burden in the country and the human and social development index; analyze the achievement of budget control as essential and healthy measure for the realization of social rights; highlight the importance of society to the achievement of unavailable social interests, affirming the need for the implementation of participatory democracy and, in this line, brings knowledge of the Constitution and the constitutional sense as elements that provide the constitutional progress. Finally, it presents a study on public policies, considering that these are equivalent to the primary means of the promotion of social rights. That way it analyzes the stages that integrate public policies, ranging from the perception of social problems for evaluation and control of the policies implemented; debate about the administrative discretion in when it comes to public policies; brings the classification of essential public policies, the relationship of these with the existential minimum, control parameters and, finally, the legalization of public policy, regarded as legitimate to remedy the unconstitutional state failure and give normative effectiveness and strength to the defining constitutional rules for fundamental social rights. It uses to achieve the objectives outlined, the bibliographic and normative approach method and performs an analysis of jurisprudence related understandings to matter. In the conclusions, it rescues the most important aspects elucidated at work, with the aim of giving emphasis to the proposals and mechanisms that contribute to the solution of the discussed problems.

Escolarização de surdos no ensino médio em Natal/RN: vendo e ouvindo vozes

La Escuela Secundaria es la etapa final de la Educación Básica y su objetivo es profundizar los conocimientos adquiridos anteriormente, con vistas tanto a la continuidad de los estudios por parte de los alumnos como también a su formación profesional. Considerando el carácter excluyente y elitista de la Escuela Secundaria brasileña, solo recientemente las matrículas de los estudiantes sordos comienzan a ampliarse, y los profesores se deparan con el desafío de lidiar con ese tipo de discente en aulas regulares. Tanto la política de educación especial, desde una perspectiva inclusiva, como la Ley nº 10.436/2002 – reglamentada por el Decreto nº 5.626/2005 – posibilitaron un gran salto para la educación de los sordos en el país. La primera, por la defensa de una escuela atenta a las peculiaridades y demandas de sus discentes; la segunda, por reconocer la Lengua de Señas Brasileña como medio de comunicación y expresión legítimo de la comunidad de sordos y por indicar medidas que garanticen el derecho al acceso y al éxito escolar de la población sorda dentro de la escuela. Amparado en esas discusiones, este estudio tuvo como objetivo analizar el proceso de escolaridad de alumnos sordos de una Escuela Secundaria pública y estatal del municipio de Natal, Rio Grande do Norte. Se realizó un estudio de caso de tipo cualitativo. Los sujetos fueron tres discentes sordos que estaban terminando la Escuela Secundaria, una profesora de Portugués y dos intérpretes de Lengua de Señas Brasileña. Como procedimiento de investigación, se utilizaron entrevistas (grabadas en audio y video), observaciones y análisis de documentos. La participación de los sujetos sordos demandó cuidados éticos adicionales, tales como la traducción del Término de Consentimiento Libre y Aclarado y del guion de la entrevista a la Lengua de Señas Brasileña. Los resultados apuntan que el acceso y la permanencia en la escuela secundaria fueron garantizados, no obstante había poca participación en las clases y el aprendizaje de los contenidos escolares estaba comprometido. Había traductores/intérpretes de Lengua de Señas Brasileña, los cuales, sin embargo, solo iniciaron sus actividades tres meses después del comienzo del periodo lectivo. La profesora y los intérpretes no mantuvieron interacciones que facilitasen el aprendizaje o la participación de los estudiantes, quienes se encontraban siempre juntos y en un lugar determinado del aula, sin mayores interacciones con sus pares normo-oyentes. Los discentes sordos estaban terminando la Escuela Secundaria con edades superiores a 17-18 años, los cuales revelaron no tener perspectivas de continuidad en sus estudios o de inserción en el mercado laboral. Se concluye que la escolaridad de los alumnos sordos en la escuela investigada apunta a la necesidad de una reorganización curricular que atienda a las especificidades lingüísticas y sociales de esos estudiantes.