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

Os conflitos de competência normativa do estado regulador brasileiro no setor administrado pela ANP

The dissertation has by objective describe the administrative activity of regulation exercised by independent regulatory agencies, observing that this activity was already done before this structures creation, however, after a really deep administrative reform that had as objective built a Public Administration with more efficiency, it passed to be done with some own peculiarities of these new structures of regulation. The work gave especial attention to what concern the conflicts of normative competency that really often happen between ANP (Agência Nacional do Petróleo, Gás Natural e Biocombustíveis) and the legislatives organs of the Republic Federative of Brazil, because energetic area has unbelievable mater to any country, and the fact of some juridical norm be against the law and be accepted is very dangerous, it affronts the constitutional principle of the legality e may put in risk the democratic Estate of law, them, regulatory dogmatic must be scientifically knows, and developed, thought and especially there are so many doctrinaires divergences about regulation constitutionality. As a theorist point, the investigation got the Logical nocontradiction principle, according Hans Kelsen and Lourival Vilanova thought, doing a philosophical reflection about the system of positive law, in which there are many antinomies, or conflicts of norms, what include the conflicts of the administrative acts expedited by ANP and the legislation of the brazilian regulatory Estate. For a better understanding and exemplify some perplexities treated by the doctrinaire angle, this work did a lucubration about a possibility of a normative conflict between a ANP resolution and the municipal legislation in a specific case, also, brought several jurisprudences for the brazilians courts of justice, that confirm the empiric existence of normative conflicts among ANP s administrative norms and federal legislation. Finally, concludes observing that the regulation is not a legislative competency delegation to regulatory agencies, is just a new exercise of the administrative function, it is a technical specialization of the public administration, that using this know-how can acting with more efficiency, however the normative power of regulatory agencies must respect the empire of law, so in this terms, the dissertation suggests the ponderation of the constitutionals principles of efficiency and legality how form to harmonizing the democratic legitimate inherent to legal norm supremacy, with the perspective of an efficient economic and institutional development

Democracia participativa e regulação econômica: uma questão de legitimidade

This work presents an analysis about the legitimation of independent regulatory commission`s rulemaking power by participation procedure. It is observed that political and administrative decentralization and fragmentation of State, with the purpose of approaching citizens and provide, more efficiently, the functions acquired by the passage of the Welfare State, leads to a deficit of legitimacy (democratic crisis), which is noticeable in the making of legal norms by directors of independent regulatory commission to regulate specific economic sector. However, we understand that this crisis stems from the observation of the contemporary world from dogmas and legal institutions of the eighteenth century, without their evolution and adaptation to the modern world. The legitimacy must be perceived as the justification of power, relation command /obedience, which, from the Modern State, has the democracy as standard. Therefore, just as the world has evolved and demanded political and administrative decentralization to accompany him, it is necessary to the development of the idea of representative democracy (formal legitimacy) to participatory democracy (legitimacy stuff). Legitimacy is not confused with the legality: as the legality is on observance to internal legal system, the "rules of play"; legitimacy, as inputs to be fed into this system, the selection of the different expectations in the environment. Nevertheless, the legitimacy will take place by legality, through introduction of rational and communicative procedures: procedures get fundamental importance because these will be the means to select the expectations to be introduced in the legal system in order to make decisions more fair, rational and qualified towards society. Thus, it is necessary to its opening to the environment for dialogue with the government. In this context, we try to make an analysis of constitutional norms based on systematic and teleological interpretation of these norms to build these arguments. According to the Constitution of 1988, participatory democracy is a result of the democratic principle (sole paragraph of art. 1 of the Constitution), and it is an expression of citizenship and political pluralism, both foundations of Republic (respectively Art. 1st, inc . V and II of the Constitution), as well as the national consciousness. From another point of view, that principle consists of an evolution in the management public affairs (principle of Republic). The right of interested participate in the rulemaking process derives both the principle of popular participation (part of the democratic principle) and the republican principle as the due process constitutional (art. 5, LIV and LV, CF/88) and the right to petition (Art . 5 °, inc. XXXIV, "a", CF/88), and it is the duty of the State not only be open to participation and encourage it. Ignoring stakeholder involvement in procedures and / or expressions compiled can be causes of invalidation of the rule of law produced by addiction of procedure, motive, motivation and/or because of the administrative act. Finally, we conclude that the involvement of stakeholders in the process of making rules within the independent regulatory commission is the legitimacy and the validity of rules; and that, despite of the expressions do not bind the decision making, they will enter the system as juridical fact, balancing the field of technical discretionary of agencies

Desenvolvimento como acesso às políticas públicas: a reforma do estado e a concretização dos direitos prestacionais

The state s evolution, after its liberal and the social stages, arrives at the post-social state, also regarded as regulatory state, which, in order to accomplish the state s aims, employs indirect interventions in the economy. The new model of administration adapts principles and concepts form the private sector such as the quest for efficience and tangible results, also striving for the decentralization of state s power to improve effectiveness before the new paradigm of handling of affairs of public interest. Present state derives its legitimacy from the efficiency principle, the legitimacy of the public administration cannot be limited to an analysis of legality, but the fulfillment of the ends envisaged by the public authority on its policies. These public policies have the objective of satisfying fundamental rights of the citizens. The access to public policies set by states as a way of enjoyment of the aforementioned rights constitute a legal and demandable path of development. The creation of public policies and the access to them must abide to the efficiency principle. This access must be taken unther the principles of legal and material equality, inasmuch as the liberty and real liberty. The access must also be observed as a matter of limited resources to grant, in reality, the access and enjoyment of these rights. The demandable nature of the access to public policies binds the public authority into broadening the range of these policies to every one who needs them. Thus, in this spectrum, the role of the Regulatory State, as the legal instruments for access of public policies as a legal path to development, is analyzed in the present work

O princípio constitucional da legalidade administrativa e os limites do controle das atividades-fim das agências reguladoras pelo Tribunal de Contas da União

Analysis of the role of the Union Accounts Court on the control of regulatory agencies, with the objective of identifying the limits of the Institution s acting on the aim activities of the agencies, particularly the control limits of the Court on the merits of discretionary administrative actions, taking into account the autonomy of these entities in the model of regulatory state. Analyzes the principle of administrative legality, the control of public administration, state s action in the economy and facing regulatory agencies, their emergence, evolution and characteristics. Includes the study of jurisprudence and doctrinal differences, as for the limits of the powers conferred by the constitutional legislator to Federal Court of Audit, regarding the control of agencies aim activities, or, in other terms, their regulatory and inspector missions of market, under the principle of administrative legality. Performs analysis, based on case studies involving Court s audits on regulatory agencies. Are appreciated differences within the Institution about the their decisions effects - imposed or not - as regards the arrangements to be adopted by regulatory agencies to correct the flaws and omissions found during Court s inspections, in which content of the act of public agent, despite their technical nature, can happen the criterion of convenience and opportunity

Participação administrativa processual na administração pública dialógica

The dissertation, which is based on the deductive method, by using general concepts of the theory of the administrative participation in the administrative process, addresses the importance of strengthening administrative and procedural activities of citizen involvement in public administration for the administrative consolidation of democracy in Brazil. The emergence of Administrative Law has particular importance for the understanding of its institutions and, of course, for the different fields of public administration. The authoritarian profile of this area of law still exists as a clear recollection of their origin, mainly based on a relationship of superiority of the state over the individuals. Indeed, does not even modern constitutionalism could print a true democracy administrative, since the constitutions were not properly observed by the Government. Furthermore, only the process of constitutionalization of administrative law legal relations took a more democratic profile. That is, the creation of an environment of dialogue with civil society is a recent achievement of the Brazilian government. As the administrative process involves dilemmas and solutions of state action, because it is revealed the expression government, the strengthening of institutions and principles related to the administrative procedure is important for role in making a more participatory relationship between state and citizen. Thus, administrative participation can be considered not only a mechanism of control and legitimacy of state action, but also for improvement and reduction of administrative costs, as a requirement of the principle of efficiency. The objective of this investigation is to assert as the administrative legal relation, the administrative legality, the administrative jurisdiction, the processuality administrative, the consensuality administrative and administrative justice, together with administrative participation, can contribute to a more democratic role of the Public Administration and, therefore, more dialogic and consolidator of the fundamental rights of citizens. Therefore, we highlight the importance of the administrative process and administrative participation as mechanisms for improving public policy and thus as a means of reducing administrative costs mediate the state

No pulsar da clínica: a repetição e as produções corporais de uma criança

This study investigates the Repetition of movements shown in a stereotypical case of a child three years old. In line with the psychoanalysis model of search, this work presents fragments of the clinic process, the locus for the observation of repetitive, ritualized and choreographically movements of this child who used not to speak. The contrast between their movements and the issuance of a word verbalized at the end of the treatment caused the following question: repetition in this child production would be a reproduction of the same or would be directing for the difference? In the psychiatric speech, the stereotypes are listed as diagnostic criteria for certain mental disorders. In the psychoanalysis studies a question about the psych nature of ritualistic gestures apparently without purpose or direction is included. Thus, the route followed was the reading of the theoretical concept of repetition in the psychoanalytic works of S. Freud and J. Lacan. With Freud, the repetition is linked to the transfer and resistance. In that context, when it appears in act, in the place of the talk, it constitutes a particular way of remembering. But the existence of a force in the psychic apparatus that acts independent and involuntarily of the Principle of pleasure (the repetition compulsion) subsidizes the discovery of Freudian pulsion of death that is the tendency to return to itself. In the Lacan reading, the function of Repetition is magnified, as it fulfils two functions: the automaton - reminders of repetitive signs, and that the service of tiqué - the meeting of the subject with his lack constituent. In this sense, repetition is not simply a reproduction, but the search for new, the difference, caused by the lack of continuity that pushes the circuit. Finally, the clinic process and the theoretical readings made the comprehension of the child repetitive and choreographically movements and the pronouncement of a "good-bye", full of meaning. This repetitive scenario which is full of questions, by this very nature, insists in remains inconclusive