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 da redução das desigualdades regionais e os campos maduro-marginais de petróleo: aspectos regulatórios e fiscais

Under the circumstances of the desestatization that penetrate Brazilian economy in the 90‟s, new features in the monopoly of oil by the Union were designed by the constitutional amendment number 9. of 1995. This deep change in the legal regime of oil sector brought the possibility of entrance to small and medium size producers in this industry, especially through the production activities developed in mature and marginal fields of oil, which are located mainly in northeast region of Brazil. Considering that the intervention of state over the economy finds its guidelines and limits in Federal Constitution disposals, the present work investigated in which way states regulation, mainly through taxation rules, has obeyed the constitutional regime in force, and specially, the reduction of regional inequalities principle. By mean, firstly, of an analysis of central concepts (mature fields, marginal fields, small and medium size producers) we observed that the imprecision over the conceptual aspect has constituted an obstacle to a specific states‟ regulation, directed to this newborn class of producers, whose growth has been pursuit by the state. That is verified in the case of concession procedures, and also, concerning the taxation system applied to small and medium size producers. Examining the main constitutional principles related to this universe which are the legality, equality, privileged treatment to small enterprises, contributive capacity, and reduction of regional inequalities we conclude that it is legally possible, a truly specific regulation, including a special taxation regime, to the small and medium size producers whose activities are concentrate over mature-marginal fields, aiming the concretization of the Brazilian state main goals

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

A Constitucionalidade do decreto de licitações da Petrobrás à luz dos princípios da legalidade e da eficiência

PETROBRAS, a Brazilian oil company, follows principles of public administration and from the Constitutional Amendment 9/95 in Brazil began to compete with other companies with the flexibility of the oil monopoly. In this new model started to use the simplified procedure for bidding so that could compete on equal terms. The ordinance that adopted a simplified procedure for bidding has been the subject of some criticism and lawsuits especially under the Court of Audit and the Supreme Court in Brazil. The analysis of their constitutionality, and the possibility of their use by other group companies is the theme of this work, and for this purpose, permeates through the notions of judicial review in the Brazilian law on the stage of law and economics analysis of the norm, and the principles applicable to PETROBRAS and the devices most frequently asked about the implementation of 2745/98 Decree. For this, the basic issue that should be investigated further is the regulatory power of the Federal Executive and the delegation of powers within the legislature and its conformation to the constitutional regency

A objetivação do controle concreto de constitucionalidade nas decisões do Supremo Tribunal Federal

The independence of the United States and the revolutions that emerged in Europe in the eighteenth century led to the birth of the written constitution, with a mission to limit the power of the State and to ensure fundamental rights to citizens. Thus, the Constitution has become the norm and ultimate founding of the State. Because of this superiority felt the need to protect her, emerging from that constitutional jurisdiction, taking control of constitutionality of provisions his main instrument. In Brazil, the constitutionality control began with the Constitution of 1891, when "imported" the American model, which is named after incidental diffuse model of judicial review. Indeed, allowed that any judge or court could declare the unconstitutionality of the law or normative act in a concrete case. However, the Brazilian Constituent did not bring the U.S. Institute of stare decisis, by which the precedents of higher courts eventually link the below. Because of this lack, each tribunal Brazilian freely decide about the constitutionality of a rule, so that the decision took effect only between the parties to the dispute. This prompted the emergence of conflicting decisions between judicantes organs, which ultimately undermine legal certainty and the image of the judiciary. As a solution to the problem, was incorporated from the 1934 Constitution to rule that the Senate would suspend the law declared unconstitutional by the Supreme Court. With the introduction of abstract control of constitutionality, since 1965, the Supreme Court went on to also have the power to declare the invalidity of the provision unconstitutional, effectively against all without the need for the participation of the Senate. However, it remained the view that in case the Supreme Court declared the unconstitutionality of the fuzzy control law by the Senate would continue with the competence to suspend the law unconstitutional, thus the decision of the Praetorium Exalted restricted parties. The 1988 Constitution strengthened the abstract control expanding legitimized the Declaratory Action of Unconstitutionality and creating new mechanisms of abstract control. Adding to this, the Constitutional Amendment. No. 45/2004 brought the requirement of general repercussion and created the Office of Binding Precedent, both to be applied by the Supreme Court judgments in individual cases, thus causing an approximation between the control abstract and concrete constitutional. Saw themselves so that the Supreme Court, to be the guardian of the Constitution, its action should be directed to the trial of issues of public interest. In this new reality, it becomes more necessary the participation of the Senate to the law declared unconstitutional in fuzzy control by the Supreme Court can reach everyone, because such an interpretation has become obsolete. So, to adapt it to this reality, such a rule must be read in the sense that the Senate give publicity to the law declared unconstitutional by the Supreme Court, since mutated constitutional

O direito fundamental contra a autoincriminação: a análise a partir de uma teoria do Processo Penal Constitucional

The right against self-incrimination is a fundamental right that works in the criminal prosecution, and therefore deserves a study supported by the general theory of criminal procedure. The right has a vague origin, and despite the various historical accounts only arises when there is a criminal procedure structured that aims to limit the State´s duty-power to punish. The only system of criminal procedure experienced that reconciles with seal self-incrimination is the accusatory model. The inquisitorial model is based on the construction of a truth and obtaining the confession at any cost, and is therefore incompatible with the right in study. The consecration of the right arises with the importance that fundamental rights have come to occupy in the Democratic Constitutional States. In the Brazilian experience before 1988 was only possible to recognize that self-incrimination represented a procedural burden for accused persons. Despite thorough debate in the Constituent Assembly, the right remains consecrated in a textual formula that´s closer to the implementation made by the Supreme Court of the United States, known as "Miranda warnings", than the text of the Fifth Amendment to the U.S. Constitution that established originally the right against self-incrimination with a constitutional status. However, the imprecise text does not prevent the consecration of the principle as a fundamental right in Brazilian law. The right against self-incrimination is a right that should be observed in the Criminal Procedure and relates to several of his canons, such as the the presumption of not guilty, the accusatory model, the distribution of the burden of proof, and especially the right of defense. Because it a fundamental right, the prohibition of self-incrimination deserves a proper study to her constitutional nature. For the definition of protected persons is important to build a material concept of accused, which is different of the formal concept over who is denounced on the prosecution. In the objective area of protection, there are two objects of protection of the norm: the instinct of self-preservation of the subject and the ability to self-determination. Configuring essentially a evidence rule in criminal procedure, the analysis of the case should be based on standards set previously to indicate respect for the right. These standard include the right to information of the accused, the right to counsel and respect the voluntary participation. The study of violations cases, concentrated on the element of voluntariness, starting from the definition of what is or is not a coercion violative of self-determination. The right faces new challenges that deserve attention, especially the fight against terrorism and organized crime that force the development of tools, resources and technologies about proves, methods increasingly invasive and hidden, and allow the use of information not only for criminal prosecution, but also for the establishment of an intelligence strategy in the development of national and public security

A alteração do tipo penal de adulteração de combustíveis: reflexo da constitucionalização do direito penal no mercado de combustíveis

The neoconstitutionalism led to a process of ethical revaluation of the normative systems and the process of constitutionalization of the many fields of law. This study examines the consequences of this process in criminal law, so important a Law field for the protection of the most valuable assets by the society, including the fundamental guarantees, thus emphasizing the necessity of protection of the collective and individual rights, which are guided by the observance of the defendants individual rights in the course of criminal proceedings and the search for the best efficiency of penal protection, according to the corollaries of defense against the state (prohibition of the excess or Übermassverbot) and the provision of rights by the state (prohibition of insufficient protection or Untermassverbot). The offense of fuel adulteration is taken as an object of study, since it is a vital market to a nation dependent of people and good s movement for their living, driven by fossil and biofuels. Such a crime affects essential legal interests to the development of society, interests such as the environment, consumer relations and economic order, particularly the principle of free competition. This paper seeks to analyze the need of a greater efficiency of this particular criminal protection, once concluded the conduct harm and social fear as a consequence by it as growing, and therefore having its former crime type, engraved in Article 1 of Law No. 8.176/1991, rewritten in compliance with the criminal law s principle of legality. Thus, the reformation proposals and legislative creation involving this crime were observed, with emphasis on the bill No. 2498/2003, which keeps it as blank heterogeneous criminal norm, kind of penal normative whose constitutionality is raised, including the forethought of criminal responsibility in the perpetrating of the offense as culpable and subsequently increasing the applicable minimum penalty, as well as the inclusion of new activities in the typical nucleus

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

WI-BIO: redes de monitoramento de pacientes em ambientes de automação hospitalar utilizando o padrão IEEE 802.11

The monitoring of patients performed in hospitals is usually done either in a manual or semiautomated way, where the members of the healthcare team must constantly visit the patients to ascertain the health condition in which they are. The adoption of this procedure, however, compromises the quality of the monitoring conducted since the shortage of physical and human resources in hospitals tends to overwhelm members of the healthcare team, preventing them from moving to patients with adequate frequency. Given this, many existing works in the literature specify alternatives aimed at improving this monitoring through the use of wireless networks. In these works, the network is only intended for data traffic generated by medical sensors and there is no possibility of it being allocated for the transmission of data from applications present in existing user stations in the hospital. However, in the case of hospital automation environments, this aspect is a negative point, considering that the data generated in such applications can be directly related to the patient monitoring conducted. Thus, this thesis defines Wi-Bio as a communication protocol aimed at the establishment of IEEE 802.11 networks for patient monitoring, capable of enabling the harmonious coexistence among the traffic generated by medical sensors and user stations. The formal specification and verification of Wi-Bio were made through the design and analysis of Petri net models. Its validation was performed through simulations with the Network Simulator 2 (NS2) tool. The simulations of NS2 were designed to portray a real patient monitoring environment corresponding to a floor of the nursing wards sector of the University Hospital Onofre Lopes (HUOL), located at Natal, Rio Grande do Norte. Moreover, in order to verify the feasibility of Wi-Bio in terms of wireless networks standards prevailing in the market, the testing scenario was also simulated under a perspective in which the network elements used the HCCA access mechanism described in the IEEE 802.11e amendment. The results confirmed the validity of the designed Petri nets and showed that Wi-Bio, in addition to presenting a superior performance compared to HCCA on most items analyzed, was also able to promote efficient integration between the data generated by medical sensors and user applications on the same wireless network

SAMVC sistema de autoria de museus virtuais colaborativos

The use of graphical objects three-dimensional (3D) multimedia applications is gaining more space in the media. Networks with high transmission rates, computers with large processing and graphics boost and popularize such three-dimensional applications. The areas of 3D applications ranging from military applications, entertainment applications geared up for education. Within the applications related to education, we highlight the applications that create virtual copies of cultural spaces such as museums. Through this copy, you can virtually visit a museum, see other users, communicate, exchange information on works, etc. Thereby allowing the visit museums physically distant remote users. A major problem of such virtual environments is its update. By dealing with various media (text, images, sounds, and 3D models), its subsequent handling and update on a virtual environment requires staff with specialized knowledge. Speaking of museums, they hardly have people on your team with this profile. Inside the GT-MV (Grupo de Trabalho de Museus Virtuais), funded by RNP (Rede Nacional de Ensino e Pesquisa) propose a portal for registration, amendment and seen collaborative virtual museums of Brazil. The update, be it related to work or physical space, a system with a national scale like this, would be impossible if done only by the project team. Within this scenario, we propose the modeling and implementation of a tool that allows editing of virtual spaces in an easy and intuitive as compared with available tools. Within the context of GT-MV, we apply the SAMVC (Sistema de Autoria de Museus Virtuais Colaborativos) to museums where curators build the museum from a 3D floor plan (2D). The system, from these twodimensional information, recreates the equivalent in three dimensions. With this, through little or no training, team members from each museum may be responsible for updating the system

Avaliação de Percepção de periodontistas, protesistas, ortodontistas e leigos sobre parâmetros periodontais relacionados à estética do sorriso

The concept of facial esthetics has been increasingly diffused, being of interest to both the general public and the surgeon-dentists. However the difficult standardization and high variability in parameters aesthetic existing in the literature result in a huge difference of opinions between professionals and layperson. In this way, objective of this research was to evaluate the perception of periodontistas, protesistas, orthodontists and layperson about aesthetics smile. The sample included 30 periodontistas, 30 protesistas, 31 orthodontists and 37 layperson. The data collection was performed through an interview indirect, by the site, which had fifteen photos to be assessed by the participants. Each photograph was intentionally modified, with four increments 1mm for each amendment, in the program Adobe Photoshop CS2 version 9.0, adding-four aesthetic alterations: exposure gingival, recession gingival, absence of papilla and contour gingival. The smile for periodontistas, 3mm for orthodontists and laity and 4mm for protesistas. And changes in recession gingival, have undertaken the aesthetics of smiling from 2mm in accordance with the periodontistas and protesistas and 4mm for orthodontists and lay people. The end of the research was possible to conclude that the perception of periodontistas, protesistas, orthodontists and layperson are different in relation to aesthetics smile, and that among the changes in the research evaluated the papilla and recession have undertaken the aesthetics of smile

Constitucionalismo internacional: direitos humanos sob a ótica da globalização

The work presented here is the result of research on the issue of human rights in the face of conflicting issues such as the incorporation of international treaties, the sovereignty of states, globalization and multuculturalism. Specifically, we will investigate the origin of human rights, alongside his growing recognition, from the Revolutions until its completion in the Universal Declaration of Human Rights in 1948. The question, however, has become broader, when analyzed from the perspective of the internationalization of these rights as conditions and limits of democracy. Given the convergence on the reception of international treaties on human rights, we analyze a series of positions, including recent placements of the Supreme Court, and Constitutional Amendment n.45/2004. The study aims to review the classical concept of sovereignty, now within a new perspective based on the appearance of certain limitations of the state and a crisis in the face of the protection of human rights. We analyze the phenomenon of globalization in light of its complexity and its relation to sovereignty and human rights in pursuit of an expansion of democracy. The theme is consistent also with the line of contemporary constitutionalism, since their approach has a close connection with the issues of sovereignty and globalization, as well as a current relationship with the protection of human rights. The research aims to analyze the formation of a new society within a global vision of the constitutionalization of international law. It seeks to glimpse the invocacion model of foreign precedents and the possibility of dialogue betweem States as a way of protecting and enforcing the protection of human rights

O princípio da eficiência administrativa na regulação da prestação do serviço de voz sobre internet - VoIP

The present work aims to demonstrate the link of the principle of efficiency - as expressed in the Constitution of 1988, by Constitutional Amendment No. 19 - with regulatory agencies, more specifically the ANATEL (National Telecommunications Agency). It also includes this principle’s importance to regulation - to monitor and manage public services - as well as when an activity will be considered efficient, keeping in mind that agencies are subjected to other principles of public administration. The increasing use of telephony has enabled further development of technologies that provide improvements in the provision of this service. The VoIP (Voice over IP), is nothing more than a technological breakthrough that directly targets the providers of conventional telephone service, both by modifying the business working for a long time with the same technology as the amount of new competitors’ dispute on market share. It also analyses the difficulty of understanding and definition of what is VoIP telephony, its growth and the threats that the traditional and mostly which is ANATEL’s role concerning this telephony technology. As regulator of the telecommunications service, ANATEL not yet regulated the voice telephony service using the IP protocol. What looks over the years is that ANATEL exercise its regulatory function to provide better conditions for competition among providers of VoIP and traditional telephone companies, obviously some difficulties are expected, given that VoIP is a technology that provides two services, through conventional telephony and using the internet.

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.

Análise de conteúdo e validação clínica do diagnóstico de enfermagem autocontrole ineficaz da saúde

The study aims to analyze the content and measures of accuracy of the nursing diagnosis Ineffective Self Health in patients undergoing hemodialysis. Study of nursing diagnosis validation carried out in two stages, namely: content analysis by judges and accuracy of clinical indicators. In the first stage, 22 judges evaluated the setting and location of the diagnosis, clinical indicators and etiological factors and their conceptual and empirical definitions. We used the binomial test to determine the proportion of the judges of the relevance of the components of the nursing diagnosis. In the second stage, we used the Latent Class Analysis for the diagnostic accuracy by evaluating 200 patients in a hemodialysis clinic in northeastern Brazil. Research approved by the Ethics Committee, under the Opinion No 387 837 and CAAE 18486413.0.0000.5537. The results show that the judges evaluated as pertinent clinical indicators 12 and 22 etiological factors. Proposed amendment of the nomenclature of five indicators and six factors and the implementation of a clinical indicator for etiology and three etiological factors for clinical indicators. In conceptual and empirical definitions, judges judged as not relevant the conceptual and empirical definitions of a clinical indicator, the conceptual definitions of two etiological factors and empirical definitions four etiological factors. Still, changes were suggested in the conceptual and empirical definitions of two clinical indicators, the conceptual definitions of 12 etiological factors and empirical definitions of 11 etiological factors. Clinical indicators analyzed in the first stage were validated clinically in patients undergoing hemodialysis. The most frequent clinical indicators were Changes in laboratory tests (100%) and daily life choices ineffective to achieve health goals (81%); and three etiological factors had a higher frequency, they are: unfavorable demographic factors (94.5%), beliefs (79%) and comorbidities (77.5%). From Latent class analysis, diagnosis prevalence was estimated at 66.28%. Clinical indicators that showed the best sensitivity measures for the nursing diagnosis Ineffective Self Health were: daily life choices ineffective to achieve health goals and Expression of difficulty with prescribed regimens. In turn, the clinical indicators of inappropriate medication use, no expression of desire to control the disease, irregular attendance to the dialysis sessions and infection were more specific as to that diagnosis. Non-adherence to treatment was the only indicator that showed confidence intervals with values for sensitivity and specificity, statistically above 0.5, being the one who has better diagnostic accuracy as the inference of the nursing diagnosis Ineffective Self Health in hemodialysis clientele. Thus, it is believed that the improvement of the components of diagnosis in question will contribute to the development of more reliable nursing interventions to the health status of the individual in hemodialysis, providing a more scientifically qualified care.