Fiscalização difusa da constitucionalidade e o incidente de argüição de inconstitucionalidade

The present work consists of studying to diffuse control of constitutionality in Brazil, with emphasis in a procedural alternative to the evolution of that model: the incident to challenge of unconstitutionality. Starting from the discussion about the new role of constitutional jurisdiction in peripheral countries and in the globalized society, without forgetting to face inevitable doubts about its legitimacy before other powers of the State, the Brazilian control of constitutionality is revealed, under a diffuse, non-dichotomical view, through a number of inconsistencies and misunderstandings, that compromise social peace, the credibility of democratic institutions and the supremacy of juridical security. In order to achieve the goal, the study in course discussed the main difficulties of the Brazilian mixed model of constitutionality control, as well as, directing its view to the incident of challenge of unconstitutionality, which the most adequate forms to assure its appropriateness, legitimacy, processing and decisory effects are. Is was essential, in this point of view, to establish the difference between the incident of challenge of unconstitutionality conceived in article of the Brazilian Federal Constitution and the incident of challenge of unconstitutionality such as it is known in the European models. The insertion of the incident of challenge of unconstitutionality based on European models in the Brazilian control system, without jeopardizing the North-American essence the Brazilian constitutional history presents since 1981, is the hypothesis that is presented as an improvement of constitutional protection

A Servidão Administrativa e o Estado Regulador: Compatibilidade com o Princípio Constitucional da Legalidade e a Limitação ao Direito Real de Propriedade

The economic changes occurred in the 90s, with the restructuring and privatization of various sectors of the economy have led to a redefinition of the State role, assuming a position of regulator and supervisor of public services in place to direct its role as straight intervenor. It is through the regulatory agencies, autarchies with special legal personality under public law, that the Regulator State will act. In this context, the first objective of this research is to analyze the legality of easements imposed by entities of the Direct Administration and Regulatory Agencies, whose execution is delegated to legal persons of private law, being those public service companies or mixed-economy societies. This examination in question the limits of servitude as a restrictive institute of property rights, observing the principles of function, supremacy of the public interests over the private ones, legality and the separation of powers. Defend the property rights like a fundamental right and your insurance as determining factor of economic development and social justice. Use the procedure in use will be the historiccomparative procedure, in order to demonstrate the legality of the public act as a maximum attempt to preserve the balance between the expansion of public services in various sectors of the economy, and the preservation of property rights, through regulation

O princípio da vedação ao retrocesso social e o papel dos poderes públicos na efetivação dos direitos fundamentais sociais

The purpose of this dissertation is to analyze the role of Public Powers in the enforcement of fundamental social rights, according to the principle of prohibition to social regression. The Federal Constitution of Brazil, situated in a position normative hierarchical superior, disciplines the legal and political process of the country, determining how Public Powers (Legislative, Executive and Judiciary) should act to enforce fundamental rights (social). Thus, features a cast of fundamental rights that aim to ensure social justice, highlighting the concern to ensure social values aimed at reducing social inequalities. The will of the state should be prevented by controlling the constitutionality of measures which restrict fundamental social rights, assuming the principle of human dignity, pillar of Social and Democratic State of Right, a dual role in the brazilian legal system, acting as the presupposition of jurisdictional control of the constitutionality of restrictive acts and as supervisory of omission or insufficient action of the State in the fulfillment of their fundamental duties. The constitutional determinations remove from the legislator the option to create or not the law that prints effectiveness to the social rights, as well as from the Executive the option of to execute or not rules directed at realization of the constitutional parameters, and Judiciary to behave or not in accordance with the Constitution, being given to the Powers only the arbitrariness of "how" to do, so that all functions performed by public actors to use the Constitution as a repository of the foundational values of the collectivity. Any situation that does not conform the principle of proportionality in relation to the enforcement of fundamental rights, especially the social, represents an unacceptable social regression unconstitutional. The constitutional rules and principles postulated by the realization of the rights, freedoms and guarantees of the human person, acting the principle of prohibition to social regression to regulate a concrete situation, whenever it is intended to change, reducing or deleting, the content of a social right. This paper of limit of state action serves to provide to the society legal security and protection of trust, ensuring the core of every social right. This should be effected to be sheltered the existential minimum, as a guarantee of the inviolability of human life, respecting the constitutional will, not falling into social regression

A cidadania no contexto do estado constitucional democrático de direito brasileiro

The citizenship is a fundamental category to the democratic progress and the development and concretization of human rights, in addition to being one of the essential foundations of democratic contextualized in the rule of law of the Federative Republic of Brazil. That’s exactly why the discussion about its concept and content is a paramount requirement to the understanding and interpretation-application-concretization of the Federal Constitution of 1988, as well as its democracy, since there is no democracy without citizenship. That is why the general objective of the research is to determine the characteristics of the citizenship, relating it to the Law, as well as to discuss (critically) its inclusion in the list of fundamental rights and delimitate the scope of protection and the limits of this right, in the context of Brazilian law post-1988 Constitution. The specific objectives are: a) to analyze the concept of citizenship, its extent and scope, contextualizing it historically; b) to examine the evolution of the legal and regulatory treatment of the citizenship in Brazilian constitutions, focusing on the 1988 Constitution; c) assess whether citizenship can be considered a fundamental right; d) to investigate which implications, theoretical and practical, of assignment fundamentality character to the right to citizenship. This research identifies and deconstructs current conceptual confusions, such as the lack of distinction between citizenship and nationality; citizenship and electoral capacity; citizenship and person. It also helps to identify and oppose the generalizations, as well as the excessively abstract associations which tend to purely metaphysical understandings, fluid and empty of any content. The main virtue, however, is the proposed of understanding of the citizenship as a fundamental right and the examination of the relationship between citizenship and human dignity. In this context, citizenship appears as a corollary of human dignity and it goes beyond. This (human dignity) requires equality, non-arbitraries, non-excessive, disproportionate or unreasonable impositions affecting their freedom rights, and, yet, doesn’t affect a minimum core of possibilities of have to a decent life, in conditions of freedom and self-conformation involved in the necessary consideration of the individual as a subject. All of this requires a decision-making process, molded by the citizenship, which reaches the entire development process of possible state interventions, to ensure the person as a subject, the right holder and the objective point of reference of the juridical relations. Thus, the citizenship represents a substantial and beneficial addition to the human dignity, since the emancipated citizen is a person, formally and materially, qualified, to be able to build their own and collectively organized history, to participate effectively in the making processes decision juridical and social

Os limites do poder regulamentar do Conselho Nacional de Justiça no contexto do Estado constitucional brasileiro

The creation of the National Council of Justice (CNJ) through the Constitutional Amendment nº 45/2004, derived from countless gaps in Brazilian law, mainly relating to procedural delays, ineffectiveness of judicial decisions, and the lack of mechanisms that enable, effectively, disciplinary accountability of judges. The council is constitutionally designed as a member of the Judiciary, which has administrative nature and laid assignments in art. 103-B, § 4 of the current Constitution, among which is to edit regulations to instrument its performance. However, since it came into force, the amendment raised extensive discussions, linked in particular to the constitutionality of the CNJ, which was made through the direct action of unconstitutionality nº 3367, against the alleged violation of the principles of separation of powers and federative form, as well as the limits of its regulatory powers, as has fanned out in ADI nº 3823/ DF, this one dealing on Resolution nº 07, which regulates the seal of nepotism practice in the judiciary. However, despite the Supreme Court has already pronounced on the matter, recognizing the constitutionality of the council, as well as the resolution already said, the debate is in a state of latency, and may erupt again with each new manifestation of regulatory CNJ, given the lack of agreement between doctrine and jurisprudence around the constitutional treatment of its regulatory powers. In this context undeniably reflection on the definition of the regulatory power of the CNJ, presents itself as extremely relevant, and current, in particular in the ambience of the Constitutional Rule of Law, where he strives for legal certainty and consolidation of regulatory institutions. So that it could reach a satisfactory result, skilled at resolving the problems raised, the present study analyzed the reasons that gave rise to the creation of the CNJ, demonstrating their indispensability, but also sought to characterize the status of their administrative and constitutional body, noting finally, the compatibility of its regulatory activities to constitutional principles. From this perspective, we adopted the deductive method and carried out research and bibliographic nature documentary.