Ordem econômica e política nacional de recursos hídricos: hermenêutica constitucional para o desenvolvimento sustentável

This research proposes a study about the interpretative techniques application that are compatible with the national legal system under the principles for Sustainable Development characterized in Brazilian Constitution. It verifies the actual possibility of reconciliation between national development and environment protection, with reflections under the water legal protection. It was proposed, therefore, to point subsidies for jurisdictional decisions involving development and the environmental goods, protected as constitutionally guaranteed principles. It was assumed that, both development and environment protection represents basic rights that are eventually placed in conflict situations, considering the many legitimate economic activities within the Brazilian State. A representative case analysis was elected within the current national scene, detailing the judicial and political conflict involving the Transboundery water Project from the São Francisco River Basin to another Northeastern river basin in Brazil. The implementation of several constitutional principles with elements from legal hermeneutics provides subsidies for the legal analysis about the conflict between development and environmental protection. It was assumed that the main discussion item about rights due to development today is the institutions influence and their results, among them the rules, laws and interpretative elements for the constitutional text objectivity, as the institutions credibility and the Supreme Courts interpretations. The use of interpretative resources for specific conflict situations about constitutional principles by Superior Courts, on the search, would bring a contributory factor for decision safety, related to sustainable development principles, elimination of inequalities and regional protecting for the environment. Specific aspects of Law No. 9.433/97 that introduced the National Water Resources Policy were examined, with its instruments, in order to specifically contextualize aspects of the Brazilian water resources management politics

As sanções políticas, mecanismo de intervenção do estado na ordem econômica e tributária

This work pursues to analyze the sanctions of restrictive nature, which are characterized by impeding the business of the contributor in debt. Such sanctions known as political sanctions, are truly understood as an indirect way of tax enforcement, liable to cause problems to the private entity in curtailing, the initiative freedom, opposing the Article 5°, item XIII and Article 170, single paragraph of CF/88. As the State gets the several means to assure the economic order effective performance, it is up to the State to restrain the economic power abuse that objects to the marketing domination, to the ending of competition, and arbitrary increasing of profits (CF Article 173, § 4ª.) Therefore, it depends on the state, besides maintaining the economic order, to ensure a fair distribution of tax burden and act under the command of the Democratic State of Law principles. In order to make the tax collection effective, specific in some cases, the administrative fiscal agent uses coercive, excessive, and institutional, in imposing sanctions which causes constraint, maculating the contributor s essential rights, that matters of the necessity to force the tax credit ending. The principle of the free initiative and free competition, which are intended to be analyzed in this study, comes from a constitutional context and it will be reviewed in its systematic relations and with another rules, in order to evidence, at the end, the occurrence of an intervention towards the economic order when the State makes do of political sanctions as a tool for the tax credit effectiveness, infringing the Tax and Constitutional principles

Contribuição ao estudo da isonomia na tributação sob a perspectiva da ordem econômica

The study aims to investigate the limits of state intervention via induction on Economic Order, especially in cases regarding tax equality, through the analysis of their effects on economic development and on free competition from the perspective of economic efficiency and the Constitution. Thus, the work seeks to demonstrate that the achievement of equality in taxation is important in that it strengthens the economic relations in terms of efficiency, protects competition and fosters economic development to reduce regional and social inequalities and other constitutional desiderata. A dissertation is characterized by interdisciplinarity and was divided into two parts. The first is to discuss the legal meaning of equality from the doctrinal analysis of the principle and the relationship between equality and justice in the economic sense without rejecting its philosophical content. It is noteworthy that hermeneutics and the philosophy of language are useful tools for achieving equality in presenting the pragmatic methodologies applicable to the subject in terms of corrective justice. Based on these general assumptions, is going to study the tax equality and their characteristics, the corollary of the ability to pay and its relation to the economic capacity and the issue of progressivity in taxation as an ideal of distributive justice. The second part concerns the legal foundations of Economic Order and its relation to extrafiscality as a means of economic regulation in order to investigate the efficiency of this induction in order to promote economic development, free competition and tax equality itself to reduce inequalities and distributing wealth. Within this context, we investigated the scope of the constitutional principles of economic order, free enterprise and free competition, and favored differential treatment for small and medium enterprises, the issue of regional development for the reduction of regional and social inequalities, the problem the "fiscal war" and finally the efficiency from the perspective of Economic Analysis of Law

Regulação do livre acesso no transporte de gás natural à luz da ordem econômica da Constituição de 1988

In the middle of modern social changes produced by globalization and capitalism, several markets have changed. States have left the direct coordination of these markets (chiefly public utility sector in the form of monopolies), introducing regulation in order to promote competition. These changes have affected natural gas industry by promoting competition as a key factor to the development and the increase of firms in this market. The regulatory reform of natural gas industry ocurred in EUA and Europe Union and it has produced its first results. In Brazilian context, Constitutional Amendment nbr. 09 and Federal Law nbr. 9.478/97 ( Petroleum Law ) opened the natural gas market to a broad range of private economic agents and they finished the monopoly over the industry before managed by Petrobras. The new regulatory framework of Brazilian natural gas industry has designed competition as a central element to the new form of managment of business and contractual relationships of this industry. Among the regulatory instruments, open access regulation in natural gas pipelines is directed to promote competition. The questions arised about its implementation in Brazilian context are studied in the present work, in which it is discussed the constitutional rules and principles are to be applied to the open access regulation within the theme of statal regulation of economy present in constitutional economic order

Regime jurídico dos incentivos fiscais: uma análise à luz da ordem econômica

This scientific investigation begins with the recognition of the authorization granted by the Constitutional Legislator to the State for, relativizing its neutrality towards the private sector, intervene in the behavior of economic agents, through different means, including fiscal incentives and tax increases in order to achieve the objectives and directives of the Federal Constitution, as well as achieve the rights and guarantees also described in the Federal Constitution. Demonstrates, however, that this intervention in the private sector has the power to generate both salutary reflections as perverse and divorced goals from what was established by the Federal Constitution and Multilateral Agreements and this is the basis that justifies the relevance of the study: because of the urgency to provide a thorough analysis of the phenomenon of state intervention in the Economic Order, given the importance of its impacts, both for citizens' lives, as well as for the maintenance of the State established as it is nowadays. From this premise, this research examines the issue of tax policies adopted in the country, focusing on tax incentives, comparing its use with the principles of the Economic Order and the General Agreement on Tariffs and Trade - GATT analyzing whether these have been respected or if Brazil adopted unjustified protectionist measures. From this context, this research approximated different branches of the law, developed through literature review in areas such as constitutional law, economic law, tax law, financial law and law and economics. This study verifies the motivations and objectives that underlie the adopted justifications for the use of tax incentives, as well as its results, seeking to empirically answer if its use is reasonable and consistent with the terms enshrined in the Federal Constitution of 1988 and GATT. The answer to this research question will be sought through doctrinal analysis, jurisprudence and hard cases. Thus, the study begins with the historical evolution of extrafiscality, analyzes the principles that should guide the behavior of economic agents. Subsequently analyzes the legal regime of tax incentives and the results achieved by hard cases in which the tax policies with extrafiscal nature were adopted in order to demonstrate the positive and negative consequences arising from the adoption of this type of benefit

Desenvolvimento energético e energia eólica na ordem jurídica do Brasil: aspectos Institucionais e Socioambientais

A conformação do desenvolvimento propugnado pela Constituição Federal de 1988 como objetivo fundamental da república, certamente perpassa pela racionalização das questões energéticas e pela diversificação da matriz nacional enquanto estratégia de aprovisionamento. O desenvolvimento energético em toda a sua complexidade deve ser alicerçado não em uma relação de contraposição à sustentabilidade, mas cooperativismo normativo e de projetos sociais que objetivam a melhorias para a população nestes dois seguimentos. O advento das energias renováveis nesse contexto se consolida como uma alternativa viável, apesar do tratamento dado pela Lei Maior ao tema ter sido apenas com relação à geração em pequena escala. A interpretação sistemática dos postulados da ordem econômica e as exigências da sociedade estimulam o aproveitamento dos potenciais renováveis em escala comercial e regional, além do fortalecimento nos segmentos de autoprodução e produção independente. Dentre as energias tratadas como prioritárias neste contexto, a eólica revela-se como carecedora de aprofundamento das estruturas dogmáticas de sua positivação, que envolve um vasto manancial de regras pulverizadas na regulação econômica do setor elétrico e no controle ambiental. Esta textura submete os empreendimentos elioelétricos aos instrumentos da política nacional do meio ambiente e às determinações do poder concedente dos serviços de energia elétrica, responsável pela pormenorização da geração, transmissão, distribuição e comercialização de energia, independentemente da fonte primária utilizada no processo de transformação. Tratar destas questões com o compromisso na formulação de raciocínios críticos e propositivos, especialmente acerca de temas como a liberdade energética e controle de mercado, é imperioso para superar juridicamente as limitações presentes inclusive no discurso da delimitação de marcos normativos adequados. Havendo vantagens ambientais, tecnológicas e comerciais na exploração da energia cinética do vento como propulsora do desenvolvimento no modelo civilizatório estabelecido, cumpre também ao Estado dar a sua contribuição setorial na forma de incentivos, desburocratização e aprimoramento do modelo concorrencial. O estudo adota os métodos histórico-evolutivo, dialético e sistêmico de abordagem, encarando as hipóteses formuladas no aspecto das consequências multilaterais que as soluções encontradas apontam, exigindo que a estabilização de expectativas sociais por parte do ordenamento jurídico não ignorem o sentido material cognitivamente aberto do desenvolvimento. Hodiernamente, a perspectiva de desenvolvimento energético alia tendências econômicas e tecnológicas em favor das fontes alternativas mais eficientes, revelando a energia eólica como uma representante adequada em termos pragmáticos de normatização e preservação ambiental

Igrejas evangélicas e atuação social no Bairro de Felipe Camarão em Natal-RN

This work focuses on analysis of the partnerships and socio-religious actions at Felipe Camarão, a popular district situated in the west of the city of Natal-RN. We observed that the inhabitants of this district are facing some economical, political and social difficulties. Coupled to these problems - among them in this study highlight the social violence, committed mainly by young people aged 15 to 29 years, but affects the whole population - we find a location with a large number of evangelical churches. With this, we know the reality of the community more deeply, to thereby be able to understand if there are and how to make partnerships among evangelical churches, the community and other civic organizations in both of the existing district and the city to deal with these problems. In addition, we verified that the elements obstruct the public performance of the churches and also follow the actions already taken

Normas tributárias indutoras na concretização do princípio constitucional da redução das desigualdades sociais e regionais

The Federal Constitution states that the reduction of social and regional inequalities is one of the goals to be achieved by the Brasilian State. The economic constitution states that the national economy must be developed so as to achieve, amongst other objectives, the reduction of those inequalities. In this paper, we aim to demonstrate the duty, imposed by the Constitution to the State, of acting in the national economy so as to promote the achievement of the constitutional goals, among wich we highlight the reduction of inequalities. One of the instruments that can be used by the State to achieve this objective is its fiscal policy. It is also an aim in this paper to demonstrate that inducing tax norms can be used by the State, because it can encourage the economic agents to bring about the reduction of social and regional inequalities. Therefore, after bibliographic and jurisprudential research, we conclude that the duty, imposed to the State, of acting in the national economy so as to promote the achievement of the constitutional goals exists. We also conclude that this acting must be planed and constant, because the consequences are slow and that, within the limits of the constitution, the inducing tax norms can be an instrument for the State in order to reduct the social and regional inequalities

O princípio constitucional da redução das desigualdades regionais e o transporte de gás natural

In a country of continental dimensions as Brazil, one of the top challenges to its economic growth is the logistic related to energetical demand supply. We live now in the era of environmental protection and, in this new context of priorizations, it passes trough the search for alternative energies for the energetic matrix, due the petroleum elevated costs in the global market (and its finitude), but also due its pollution over the environment. This attempt of substitution needs solutions related to the national reality, into a national long term developing plan and based at a juridical-economic analysis of its realization. This study will look for, also based in an economical analysis, the juridical legitimity of choosing natural gas as the new protagonist of national economic growth (as a substitute of petroleum) and the necessary boost that must be done by law, based on an economic policy focused strictly for that fact, as a modifying agent of this reality. This study, therefore, will always be turned to a constitutional aspect, respecting the principles of economic order and the goal of reducing regional inequalities, which must influence the making off of a developing plan. At the end, it will try to demonstrate the juridical viability of such undertaking, tuned in jus-economical criteria. Another goal is related to the analysis of the natural gas industry, due the regulation of its transport has a major importance for national energetic integration, not only because this activity be characterized as a net industry, still under control of a natural monopoly, but also because the competitive or cooperative profile that should be priorized at the beginning of the economic planning for this activity (such as investment policies and its own rules that will submit private agents)

O regime constitucional da contribuição de intervenção do domínio econômico aplicável ao setor de combustíveis

The performance of the State in the economic area is only legitimized when to be given in virtue of the protection of the principles established constitutionally. Thus, the economic intervention of the State prioritizes the formation of a joust economic order and in this context, it fulfills to us to define, to the long one of this work, the contours of the intervention of the State in the economic domain in the presence of the Federal Constitution of the Republic of 05 of October of 1988, and, more specifically, in the petroliferous economic sector by means of the interventive contribution instituted after the Constitutional amendment 33/2001, with Law 10.336/2001. With the creation of this institute, in Brazil, emerged innumerable quarrels concerning its constitutional legitimacy, directing uncurling of the research to the study of the state intervention through this contribution and its constitutional limits, in the purpose to demonstrate the parameters for its institution and application. In this way, the interventive contribution in the fuel sector (CIDE-Combustíveis) shows itself as an intervention instrument on the economic domain, acting in way to finance the indirect performance of the State, specially in what concerns to the promotion of the principle of sustainable development principle. Therefore, CIDE-Combustíveis is an able instrument to concretizes the mentioned constitutional principle. Thus, the division of its incomes promotes the consolidation of the principle of the cooperative federalism. In this direction, from premises of the environmental tax law, this intends to demonstrate the utility and constitutionality of this exaction tax, primordially with regard to the realization of the basic right to the balanced environment

O princípio constitucional do desenvolvimento e a utilização de recursos hídricos na indústria de petróleo

As can be inferred by the title of its study The constitutional principle of sustainable development and the utilization of hidrical resources in the oil industry the transcribed pages are dedicated to the approach of the mentioned subjects which, despite being apparently different, will be shown intrinsically connected as goes by the study. The superation of this first step by the reader will lead to an important perception of the title: that the situation requires, urgently, a defined posture, a complete conduct change and, therefore, a modification of the paradigms currently establisheds. To brake barriers, modifying what is lived by, is the ultimate goal. For that, there is no unique path, linear, but there were broached the development themes, the hidrical resources theme and oil and natural gas industry at the necessary points to achieve, by the end, a comprehension for the Brazilian Federal Republic goals in the search for the application of these juridical norms. The ones whom lay down over this study shall notice that, more than a simple approach over these themes (which are still less worked and searched in Brazil), the heavy critic of an instituted and pacifically accepted reality, directly offensive of the constitutional principles. The debate evolves from punctual and specific aspects, it gains life, flies, searching how the juridical order equalizes the economic model to the environment defense. Standing by the possibility of conciliation among constitutional principles, the remodeling of an economic segment is defended, aligning it to the sustainable limits. Development, sustainable, becomes means and goals to the implementation of liberty, capacitating everyone to achieve their goals of life, their libertments, fruit of the inherent antagonism of the Constitution the sustainable development offers, while an axiological vector, a new reality to the economic order, turning it into a motriz element to the fortification of constitutional normative force and for the national development

Paradigma constitucional brasileiro da livre concorrência e da defesa do consumidor face às estruturas de poder no mercado

The Federal Constitution of 1988, when taking care of the economical order, denotes special concern in the abuses of the economical power and the disloyal competition. The mark to mediate of all this is, in fact, the defense and the consumer's protection, once this is final addressee of whatever if it puts at the consumption market. The coming of the Law 8.078/90, Code of Protection and Defense of the Consumer, inaugurates a time of effective concern with the homogeneous individual interests originating from of the consumption relationships. In this point, the focus of main to face of the present work lives, in other words, the protection of the right to the individual property, especially manifests in the exercise of the trade freedom that keeps direct relationship with the respective social function the one that is destined. The code of the consumer's defense doesn't just take care of this, but also of the other star of the relationships of the consumption. When affirming in the interruption VI of the art. 4th that the national politics of those relationships, finds ballast in the prohibition and repression efficient of all of the abuses committed in the consumption relationships, keeping inherent relationship-causality in the economical order, sculpted for the article 170 in the Constitution of 1988. In the generic plan, the mark of the present work is to question concerning the limits of the trade freedom and previsible collisions with protection norms and the consumer's defense, as well as factual convergences of those small systems, especially in what he/she refers to the innate interests to the suppliers. In the specific plan, we aspirated to identify the protection device-commands to the actors of the trade relationship, capable to guarantee the free competition in a global economy of market, seeking especially the Well-being, for soon afterwards, in an analytical perspective, to discover the possible applications that it holds the Federal Constitution, in headquarters of economical freedoms. It was observed that the consumer today doesn't need only of laws that their needs, fruit of the vulnerability that it is him/her meditate innate. He/she lacks, yes, of effective mechanisms that prevent lesions that can be them impinged by the suppliers at the time in that you/they are useful to repair the damages when happened, punishing the author of the damage

Os instrumentos de incentivo à produção e uso de biodiesel no Brasil: uma análise constitucional sob o princípio do desenvolvimento sustentável

The recent insertion of biodiesel derived from oily vegetables in the Brazilian energetic matrix calls for the study of some aspects that belong to it. The analysis of the carbonized energetic pattern concerns the paradigm of economic development that is constitutionally enshrined sustainable development which make environmental protection compatible with the needs of the economic rationality. This text is structured according to the ideas of modern hermeneutic that sees substantial value in the principles capable of create a harmonious relationship between law and society. The study of the constitutional principles to conduct a legal analysis about the National Program for Production and Use of Biodiesel - PNPB. The aim of the research is the study of PNPB ahead with the constitutional principles governing the economic order. To achieve this end we studied the sustainable development as a constitutional principle. We start with the notion that the thematic principles, and fundamental to understanding the dimension of sustainable development institute, since its concept is closely related to the applications of the principles enshrined in virtually all the constitutional order of the Western world. Then this was the National Energy Policy, initiating the approach by guiding principles of the National Energy Policy to develop the theme of public policy in the energy sector. Therefore, we studied the National Program of Biodiesel Production and Use - PNPB. From a technical introduction to the concept of biodiesel and a brief historical background, analyzing their advantages compared to fossil fuels predominantly used. Then it became a regulatory overview of the Brazilian legislation on the subject, central to understanding the plans and objectives pursued by the Brazilian government with encouraging the production of biodiesel. Finally discussed the tax incentives for production and use of biodiesel in Brazil. From the idea of federalism, characterized the tax as an instrument of state intervention in the economy. And finally it brought the tax incentives of Law No. 11.116/2005 in the face of the constitutional principles of economy and tax, and tax incentives from projects related to the Kyoto Protocol

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

Novas fronteiras petrolíferas no Brasil : uma análise da necessidade de nova regulamentação da área do pré-sal sob a ótica constitucional

The Oil industry in Brazil has gone through several stages during the economical, political and social historical process. However, the significative changes have happened in the last fifteen years, due to market opening arising from the relaxation of the state monopoly over the Oil deposits and its derivatives. The edition of the Constitutional Amendment #9, changing the first paragraph of the 177th item of the Federal Constitution, marked the end of a stiffness about the monopoly that the Brazilian state kept in relation to the exploration and research of Oil and Gas. The economical order was fundamental to actualize the idea contained in the #9 Amendment, since its contents has the power to set up measures to be adopted by public power in order to organize the economical relations from a social viewpoint. The new brazilian Oil scenery, called pre-salt, presents itself in a way to amaze the economical markets, in addition to creating a new perspective to the social sector. This work will identify, in this new scenario, the need for change in the legal system. Nevertheless, this subject must not be treated in a thoughtless way: being an exhaustible good, we shall not forget that the future generations also must benefit from the exploration of natural resources recently discovered. The settlement of a new regulatory mark, including the change in the concession contract model to production and sharing is one of the suggested solutions as a bill in the National Congress, in an attempt to ensure the sovereignty of the nation. The constitutionality of a new regulatory mark is questioned, starting from an analysis of the state monopoly, grounding the comprehnsions in the brazilian constitutions, the relevance of the creation of Petrobras for self-assertion of the state about the monopoly of Oil and derivatives, and its posture after the Constitutional Amendment nº 9 (1995), when a company stops having control of the state monopoly, beginning to compete in a fairly way with other companies. The market opening and private initiative are emphasized from the viewpoint of the Constitutional Principles of the Economical and Social Order. The relaxation of the monopoly regarding the exploratory activity in the Federal Constitution doesn't deprive from the Union the ownerships of underground goods, enabling to this federal entity to contract, directly or by concession of exploration of goods, to state-owned or private companies. The existing oil in the pre-salt layer transforms the scenario from very high risk to low risk, which gives the Union the possibility of defining another way of exploring this resources in the best interests of the Public Administration