A envergadura constitucional da posse qualificada na desapropriação privada

The constitutionalisation of private relations is the central theme of this work. Approached him overcome the dichotomy between public and private, through functionalization to the constitutionalization of civil law. Research on the effectiveness of horizontal rights. Constitutional under the lens, we analyzed the tense relationship between possession and ownership desfuncionalizada functionalized. We realize that having qualified and gained autonomy, and mechanism of access to goods, in view of the status sheet minimum, and of accomplishment, materializing human dignity. Then, we investigated the expropriation of private ownership qualified as legislative intervention that ensures the enforcement of fundamental rights through the state-court. We face the legal, the constitutionality and the burden of this institute. Also operability that it gives the judge, the process of exercise, the object, issues related to the burden and assessment of damages, as well as the nature, timing and costs of transferring property. At the end, we point to the scarcity palace, as well as the need to repair lege ferenda. The methodological approach has been championed by legal dogmatics in its analytical aspect, as we explore concepts and correlate with our planning. In empirical connotation, we evaluated the normativity and applicability of our law courts. For the ultimate in normative vision, answers to the problems faced and perform the necessary propositions, based on the results from the conceptual and empirical analysis

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

Deliberação e participação: dinâmica e efetividade do conselho de saúde de Mossoró/RN – 2009/2012

The social participation in Brazil takes a new impetus with the (re)democratization process of the Brazilian society and is strengthened by the resurgence of the civil society and the 1988 Constitution. In this context, the study is conducted with the scope to verify the effectiveness of deliberative Municipal Health Council of Mossoro (CMSM), with theoretical and methodological support based on the following models: the participatory normativity, which measures the degree of institutionalization, democratization and council representation; and the effectiveness of deliberative that, from the calling capacity and agenda of the participants, from the kinds of manifestation, from the decisions and the council’s office, that measures the degree of effectiveness of the deliberative council. It appears, thus, that the council has an average degree of effectiveness deliberative, standing out as means an institution that practice, despite the existence of obstacles and challenges, the role of control over municipal health policies, due, among other factors, the conservative political context, the asymmetry of resources between the counselors, the little substantive participation of the actors who attend its meetings, either counselor or not, and in particular, the reduced influence of the members in its decision-making process. In public management of Mossoro, social participation, especially social control over public actions, face, today, great number of difficulties to be held. The study recognizes that, in such circumstances, the council partially fulfills the role for which it was created, what does not impede, however, be characterized as an important deliberative space, since it allows the participation of representatives of the various segments of the state, society, their demands and intentions. Overcoming such obstacles moves through the interest of civil society to wake up and fight for the spaces in these institutions.