A função social do contrato como concretização de direitos fundamentais nas relações privadas

This dissertation deals with the social function of the contract, based on constitutional principles, especially those relating to fundamental rights. The social function of the contract (general clause) is described in the Civil Code so intentionally generic, no precise criteria to define it. Because of the fluidity of this principle, it is justified its closer study, seeking to assess its various meanings and looking away from the legal uncertainty that an unlimited conceptual vagueness can cause. The social function of the contract arises from a transformation experienced in private law from the inflows received from the Constitutional Law, the result of an evolutionary process by which it became the state structure, leaving the foundations of the classical liberal state and moving toward a vision guided by existential human values that give the keynote of the Welfare State. Arose, then the concern about the effectiveness of fundamental rights in relations between individuals, which is studied from the inapplicability of fundamental rights in private relations (U.S. doctrine of State action), passing to the analysis of the Theory of indirect horizontal effect of fundamental rights (of German creation and majority acceptance), reaching the right horizontal efficacy Theory of fundamental rights, prevailing Brazilian doctrine and jurisprudence. It has also been investigated the foundations of the social contract, pointing out that, apart from the provisions of the constitutional legislation, that base the principle on screen, there have also been noticed foundations in the Federal Constitution, in devices like the art. 1, III, the dignity of the human person is the north of the relationship between contractors. Also art. 3rd, I CF/88 bases the vision of social covenants, equipping it for the implementation of social solidarity, as one of the fundamental objectives of the Republic. Still on art. 170 of the Constitution it is seen as a locus of reasoning in the social function of the contract, the maintenance of the economic order. It is also studied the internal and external aspects of the social function of the contract, being the first part the one that considers the requirement of respect for contractual loyalty, through the objective good faith, as a result of the dignity of the hirer may not be offended by the other through the contract. On the other hand, the external facet of the social function of the contract, in line with the constitutional mandate of solidarity, indicates the need for contractors to respect the rights of society, namely the diffuse, collective and individual third party. In this external appearance, it is also pointed the notion of external credit protection, addressing the duty of society to respect the contract. There has been shown some notions of the social contract in comparative law. Then, there has been investigated the content of principle study, through their interrelationships with other provisions of private and constitutional law, namely equality, objective good faith, private autonomy and dignity of the human person. We study the application of the social contract in contractual networks as well as the guidance of conservation of contracts, especially those denominated long-term captive contracts, considering the theory of substantive due performance, concluding with an analysis of the social contract in code of Consumer Protection

Tribunal do Júri e Soberania Popular

The present work has for object the Jury under the democratic optics, looking for to demonstrate its democratic validation. The purpose of this work was to revisit the institution, in order to bring its importance while instrument of popular participation. The work presents, first, a systematic and chronological approach of the institution of the Jury and its evolution inside of Brazilian constitutional history, objectifying, with this, to approach the narrow entailing of the Jury with the constitutional postulates. After that, the constitutional principles of the Jury had been examined, looking for to establish the popular identity of the institution and its approach with the human rights system of the Brazilian Federal Constitution. More ahead, had been examined the direct participation of the society in the Jury, going deep the questions related with the election of the jurors and the jury nullification on the American Jury. Finally, had been dedicated the study of the current conjuncture of the Brazilian Jury, its problems and the possible solutions, beyond the study of the limitation's mechanisms in the constitutional principle of the popular supremacy and the reform's projects suggested for legislators and jurists. In this way, had been looked elaborate a constitutional construction of the Jury, defending its permanence in the Brasil law system, for being a fundamental guarantee to protect the freedom, moreover for being essential to validate the Democratic State of Right, for to be the materialization of the democratic principle. For opportune, it's necessary to allege that this work had been directed to the constitutional analysis of the Jury, its legitimacy and its democratic vocation, using themselves as ideological north the American Jury System and as philosophical base the social contract theory, understanding the Jury as an instrument of protection of the society front to the state supremacy and its hierarchy structure of the power

Condições de trabalho e terceiro setor: implicações contemporâneas para o serviço social

In the contemporaneity, due to the implementation of the neoliberal project in which one verifies the withdrawal of the State in regard to the development of social policies, it is observed a new way of responding to the multifaceted expressions of the social issue, which is the emergence and expansion of a supposed "third sector" in society. Thus, the productive restructuring process has led to the deterioration of labor relations, as well as a super exploration of human labor power, also triggering structural unemployment. By being delineated in classist interests, the emergence of the "third sector" brings contradictory aspects to the society, one of these being the very concept of "third sector", more ideological than real. By seeking to answer the expressions of the social issue, demands the intervention of social workers in the institutions that "composes it". This way, arises the interest in researching what are the current conditions and labor relations of the social workers who work in the institutions of the "third sector" in Mossoró-RN. Therefore, this study is constituted by a survey for the conclusion of a Master's degree in Social Service at the Universidade Federal do Rio Grande do Norte. Therefore, it was listed out as general objective to identify and analyze the conditions and labor relations of the social workers entered in the institutions of the "third sector" in Mossoró-RN. And by specific objectives: to map the institutions that are part of the "third sector" in the city of Mossoró, which have social workers on its professional staff, in order to profile the same; and, analyze the main challenges presented to the work of the social worker in these institutions. We used the bibliographic and documental research to enlighten the knowledge of the topic approached and the development of the field research, in which for the analysis of the data obtained, through field research, it was used the quantitative and qualitative approach. The search results confirmed that half of the institutions was identified as philanthropics, and most of them are funded by the federal government and that such organizations develop activities in several areas, particularly health and welfare. Concerning the conditions and labor relations, was highlighted the fact that half of the professionals insert themselves within the institutions by appointment; regarding the salary, 57.1% of employees receive between 3 and 4 minimum wages, which is considered relatively low. Was satisfactory the analysis related to the labor rights, because almost all offer a formal contract, which ensures, in great measure, the effectuation of such rights. Now with regard to the workload, 5 of 6 institutions implemented the Law Nº. 12.317/2010 ensuring 30 hours a week for social workers. However, it were cited many challenges relating the reality of the "third sector" to the conditions and labor relations, among them stands out: the delay of salary and non-salary adjustment; the realization of activities that do not relate to professionals, functions and duties; the development of many activities by a single professional. Two important data are the not incentive to a postgraduate and the charging of the fulfillment of the goals for the professional productivity. Here, it is worth to reflect that, although this study presents elements that provide to identify some aspects of labor relations and conditions of social workers in the "third sector" in Mossoró- RN, as well as some challenges that permeate this space of professional insertion, is meant that there is much to be unveiled, and other studies can later do so in an attempt to a better understanding of the complexity of processes that permeate the "third sector"