Impactos da adoção de sistemas de informação no judiciário: pesquisa com usuários do sistema processual virtual em um juizado especial federal

The Information Technology (IT) is increasing his applicability to business, both private and public companies. It is necessary the adequate use of the new technologies and get cooperation and technology acceptance of the system. People tend to resist to the changes, contributing so that the technology is rejected or even it is not recognized as promoting of the changes. This study is relevant and aim to evaluate the impacts of new technologies, considering their users as fundamental factors in the change process. The survey analyzed the advantages and the barriers of the system use in three federal special judicial of Rio Grande do Norte, with data collected in May of 2007, through the application of questionnaires to thirty eight users of the virtual system CRETA. The users' perception was evaluated, under the optics of five variables: efficiency, image, agility, ease of use and quality. Starting from the obtained results, it was evidenced that the implementation of the system felt accordingly the expected and it reached the objectives intended that were: the velocity and efficiency in the path of the lawsuits, larger productivity, resulting in a better quality of the final work introduced to the citizen and proportionate an improvement in the organizational image of the judiciary power

O controle social do judiciário: a experiência do Observatório da Justiça e Cidadania no Estado do Rio Grande do Norte

This dissertation deals with the possibility of build an effective social control of the judiciary Brazilians. The theme was bounded by a cut geographic and secular: the experience of the Center of Justice and Citizenship in the state of Rio Grande do Norte (OJC/RN), which begins formally in august 2003. The research approach and leave of experience in judicial practice and policy specific substrates to theorize about the subject. We collected documents about cases, the judicial diagnoses, reports, news material, in addition to lifting bibliographic. Therefore, it is working with about notions of a democratic state of right in the light of the Brazilian Constitution of 1988, in order to contextualize the insertion of the judicial system, by the prospect of legitimacy, which is considered by a look formal and material. It is a brief analysis of the system of official control of the judiciary (internal and external), is emphasizing its shortcomings functional and its corporate character, which suffers from poor conformation democratic. Then there is a discussion about the need to establish the social control of the judiciary, through the prism of relations of power that are locked in the judiciary, the lack of formal criteria for the guarantee of obtaining the correct judgment (laws, precedents and conscience of the judge), the problems of impunity and justice class, and from the examination of some cases, as the body of search. From this conjuncture, prepares to be an outline of shapes and the limits of social control, consonant the proposal erected in certain sectors of organized civil society, represented by the movement s social OJC. In the end, considerations are made on the legitimacy and constitutionality of OJC

O Insituto do Amicus Curiae no controle de consitucionalide brasileiro: uma abordagem à luz da efetividade do princípio do acesso à justiça

It presents a study about the control of constitutionality, its requirements and beddings. It brings, at first, notions about the concept of constitution, in its most varied aspects, as well as the systems of Control of Constitutionality. It emphasizes, considering the actual Brazilian situation, which passes through constitutional reforms and, therefore, assenting the appearance of an enormous amount of ordinary laws, the legal instability that has formed itself within the national panoram. Because of this situation, the institute of the Control of Constitutionality gains inmportancy as a way of protection of our Great Letter, against possible violations which can unfortunately happen. More ahead in the difuse control of constitutionality argues the new trend of generalization, especially after the recent reform that introduced the general repercussion as new requirement of admissibilidade of the appeal to the Brazilian Supreme Court. In the final chapter brings an analysis on the institute of amicus curiae, arguing its historical origins and its evolution, in the comparative jurisprudence, and the Brazilian right. From then is gone deep the paper of amicus curiae in the constitutionality control and, after quarrel on the difficulties of the Brazilian population to materialize its right before the judiciary, as this new institute could contribute in basic way for the materialization of the constitutional rule of access to justice

A legitimidade da jurisdição de primeiro grau na concretização dos direitos fundamentais: proposta de um novo modelo jurídico-administrativo para o segundo grau de jurisdição

The current study is about the legitimacy of lower court jurisdiction as a way of exercising basic legal rights, proposing, therefore, a new legal-administrative model for appellate court. In order to achieve that, a demonstration of the importance of basic legal rights in the Brazilian legal system and an open interpretation in light of the Constitution, as a way to affirm said rights, among which are accessibility to the justice system and proper legal protection, is required. As a result, the legitimacy to access the legal system resides in the Constitution, where the interpreter should seek its basic principles to achieve basic legal rights. It is observed that the lack of credibility regarding lower court decisions comes from the dogmatic view of truth born from power, and therefore, that the truth resides in decisions from appellate court and not from lower court judges. A lower court judge holds a privileged position in providing basic legal rights for citizens, considering his close contact to the parties, the facts, and the evidences brought forth. Class action suit is presented as an important instrument able to lead the lower court judge to provide basic legal rights. Small Claims Courts may be used as paradigm to the creation of Appellate State Courts formed by lower court judges, reserving to higher jurisdiction courts and Federal Circuit Courts, the decisions of original competency and the management and institutional representation of the judiciary system. Instilling an internal democratization of the judiciary is also required, which means the participation of lower court judges in electing their peers to chief positions in the court system, as well as establishing a limited mandate to higher court judges.

Direito fundamental ao tempo razoável do processo judicial: limites e possibilidades de concretização no ordenamento jurídico pátrio

This dissertation aims to address the limits and possibilities of realizing the fundamental right to reasonable time of the Brazilian legal system process. From this perspective, we analyze a reasonable time concept for the process, consistent with the civil homeland process; the relationship between efficiency, effectiveness, legal security and reasonable time of adjudication; a formal recognition of the fundamental right to reasonable time of the procedure in the Constitution of 1988; and the immediate applicability of this fundamental right. As indicated, the crisis of the Judiciary and procedural delay are problems directly related to the limits and possibilities of realization of the fundamental right under study. Moreover, we also present some mechanisms that can be used to overcome these problems. The subject was developed based on constitutional interpretation of fundamental rights, an approach that will always have this concern to be based on a methodology which includes the normative and empirical-dogmatic fields, realizing the fundamental right to reasonable time of the process. We adopted as methodological approach the study of this issue in judicial aspect, more specifically in the field of civil procedure. Finally, we weave through a critical and analytical view, our conclusions, which demonstrate the possibilities of overcoming the limits imposed to immediate implementation of the fundamental right to reasonable time of the process in our legal system

Ativismo judicial e materialização das políticas públicas infanto-juvenis na constituição da república: Fixação de planos ideais de atuação para os atores do Sistema de Garantia de Direitos (SGD)

The research arose from the necessity of showing ways to be followed by the actors of the System Guaranteeing Rights of the Child and Adolescent (SGD), regarding the implementation of rights for young people, because the legislation in force in Brazil is currently considered a model around the world and, paradoxically, the fundamental rights of children and adolescents are not met, even with the constitutionally guaranteed priority. Thus, the study investigates the fundamentality rights for young people, enshrined in the Constitution of the Republic, as well as the ways of effectiveness of these rights through the actions of actors of the System Guaranteeing Rights, especially the judiciary. Focusing realized, studying theories of fundamental rights, especially Structuring a Theory of Law (Strukturiende Rechtslehre), Friedrich Müller, who emphasizes the need for analysis of social reality in the application of the rule of law. Study also the public budget and public policies concerning children and adolescents, with emphasis on preparation of budget laws and the process of discussion, deliberation, choice and implementation of public policies for children and teenagers. It then presents the typical functions of the members of System Guaranteeing Rights, as well as prepare a plan for optimum performance for each of the actors, with emphasis on analysis of the implementation of public policies at the municipal level. Finally, it analyzes the theory of separation of three powers, and discusses the positive and negative factors for judicial intervention, concluding that the Courts can consider the action activist, from finding the omission of the Executive and legislative branches, as regards the implementation of the rights of children and adolescents, as well as the rights of children and young people are not realized in most cases, due to the omission of actors of the System Guaranteeing Rights

Repercussão geral e súmula vinculante: os efeitos no controle difuso

Brazil since its first republican constitution has adopted systems of laws control. The review activity was given to three state powers or functions state, Executive, Legislative and Judiciary. However, it appears that in the country along the constitutional history, has stood considerably the jurisdictional control of the most important control. Initially, back in 1891, Brazil adopted the jurisdictional control of diffuse from U.S, whose role in monitoring of standards is delivered to all organs of the judiciary, which may face a case, put on trial, ascertain whether or not the possibility of applying a law, removing its impact in case of unconstitutionality. In 1969, entered in the second legal model of judicial review, the concentrated control of constitutionality, whose inspiration comes from the positivist theory of Hans Kelsen, and was adopted by the Austrian Constitution of 1920. According to the abstract control the supervision of law is given to a Court or Constitutional Court, responsible for the analysis of the legal constitutionality independent of its application to a specific case. In Brazil the role of concentrated control was handed over exclusively to the Supreme Court, which serves as the Constitutional Court, which accumulates that function with other constitutionally provided jurisdiction. Throughout this period, from 1891 until today, Brazil has maintained a dual system of judicial control of legal constitutionality, where they coexist and harmonize the diffuse control exercised by any organ of the Judiciary, and concentrated control of competence the Supreme Court. However, one must recognize that with the advent of the Federal Constitution of 1988, the concentrated control has emerged on the national stage due to two important factors: the expansion of the legal capacity to sue and the inclusion of other ways control, besides the already known Direct Claim of Unconstitutionality. This concentrated control and projection of the Supreme Court s attempt to become a true constitutional court, led to a relative weakening of diffuse control even when performed by the Brazilian Constitutional Court. In order to become a true constitutional court, all decisions handed down by the Supreme in the exercise of constitutional jurisdiction should have the same weight and the same measure, or at least bring improvement to similar effects, once is the responsible for the final word when it comes to constitutional interpretation. Thus, the writs of certiorari and stare decisis were responsible for profound changes in the diffuse control, allowing the Supreme Court can strengthen its decisions even in the diffuse control. These two institutions have substantially changed the legal status of diffuse control, allowing an extension of the effects of decisions handed down by the Supreme Court, so that you can no longer be said that the effects of this control to restrict the disputing parties in the process

A intervenção estatal no domínio econômico privado através da nova lei de recuperação de empresas e falências (lei 11.101/05)

Analysis of the elements of the Constitutional Order of the letter 1988 politics, with emphasis in the principles of this, a study on the intervention of the State in the private initiative by means of the Law of Recovery of Companies and Bankruptcies (law 11.101/05). New enterprise vision is admitted, over all in the interdependence between economic and social factors. Study on the globalization and the interdependence of economic and legal sciences in the construction of a legal optics in the search for the economic and social development, with the recognition of the interference of the Economy in the Right and its uneven importance. Still, we delineate the state intervention in the economic scope, of company and in the judicial recovery, as well as the consequences of such intervention in the involved credits in the judicial recovery and patrimony of the debtor in recovery. For such task, the elements of the Judicial Recovery, its principles and adequacy of these to the related ones in the chapter had been analyzed that turns on the national economic Order, describing the formal procedure for concession of the benefit of the Judicial Recovery and the principles in existing them. The forms of intervention of the State in the private economy were not disrespected, relating its direct and indirect performance as half of preservation of interests writings in the constitutional scope as public interest and preservation of the National economic Order. The regulating agencies as of direct state intervention were half not disrespected of the study for the relevance of the subject. It is revised national bibliography with incursions in French, Portuguese and North American comparative jurisprudence. One contributes in the aspect of the paper of the Judiciary Power in the protection of the companies in crisis and the social and economic impacts, over all in relation to the rights of the worked ones, credit and enterprise

Acesso à justiça enquanto direito fundamental: efetivação pela defensoria pública

The Federal Constitution of 1988 is recognized for its enlargement in the face of large amount of provisions that make it up, among which many are fundamental rights. The fundamental rules set up the foundation of a democratic state, however, are the necessary legal mechanisms to be effective, its exercise is not enough merely to state them, but to offer ways for them to stop being just written standard on paper, and come to be viewed and exercised day-to-day. In this sense, access to justice presents itself in our times, as a cornerstone for a just society dictates. In this light, access to justice can be seen as the most fundamental of rights, which translates as instruments able to safeguard the fundamental rights not only against the action/omission violating the state but also the very particular. Furthermore, access to justice within the legal country, is not right for everyone, despite the willingness of the Citizen Charter in its article 5, paragraph LXXIV, ensuring that the State shall provide full and free legal assistance to those in need. More than half of the population lives in poverty and can´t afford to pay legal fees or court costs as well as a bump in their own ignorance of their rights. The judiciary, in their primary function, is in charge of trying to correct the violation of the rights, intending to effect a true distributive justice, serving as a paradigm for the promotion of substantive equality of human beings, however, is difficult and tortuous access Justice for those without financial resources. In this vein, we present the Public Defender, as keeper of the masses in its institutional role, defending a disadvantage, in the words, as a mechanism for effective access to justice, ensuring therefore fundamental rights. Public Defenders arise at the time or much discussion highlights the priority of actual access to justice, custody, therefore, intimate bond with the pursuit of fundamental rights, in which, that advance the broad range of rights, without whom could defend them or guardianship them

O piso salarial nacional: a valorização do professor na Constituição de 1988

The paper investigates the legal mechanisms used by the Legislature and the Executive to implement the constitutional principle of the teacher s minimum wage, which is proclaimed in the Constitution as a strategy of professional appreciation for this category. The text demonstrates that the legal mechanisms used to value the teacher were: the 1988 Constitution, the constitutional amendments to this Charter updated and modified the original text in relation to the matter, and finally, the Minimum Wage Law . Article nº 206 of 1988 s Federal Constitution established that basic education teachers, who work in public schools, would be entitled to a national minimum wage. Law nº 11.738/2008 ( Minimum Wage Law ) regulated the matter and made other determinations on the relationship between the State and the teachers such as the establishment of parameters for the distribution of the workload of teachers. Based on this law, since 2009 the minimum wage has been set annually by the Federal Government. However, state governments and municipalities throughout Brazil protested prescriptions contained in the Minimum Wage Law . In this context, some governors and mayors led the Supreme Court regarding the constitutionality of this law. The complainants considered that there was unconstitutional by the following: definition of the teacher s workday, which in the complainants point of view was competence of local governments; ensuring that teachers receive salaries tied to the minimum wage with retroactive effect; transformation of the minimum wage in basic salary, lack of sufficient budget in the states and municipalities to honor with the new values to be paid to teachers and, finally, determining workload for the teacher to perform other activities besides classroom activities. At the trial held at the STF the majority of Ministers rejected the claim and considered that the Minimum Wage Law , taken together, was constitutional. However, this decision did not alter the position of the managers or the interpretation of the ministers who agreed with the unconstitutionality of some aspects of the law. This means that one law can present differences in interpretation between ordinary people and among members of the Judiciary. The search showed the following conclusions: the law is not a definitive parameter of justice, because it is deeply linked to various interests; the development, implementation, and judgment of laws dealing with minimum wage of teaching are linked to historical and cultural aspects of society; the demand for enhancement of teacher and setting a minimum wage has only emerged in the late twentieth century, a fact explained in this work based on data that indicate the recent concern of Brazilian State with schooling a phenomenon typically Republican and with the professionalization of teaching emerging concern from the knowledge society; the Legislative and Executive search mechanism to implement the minimum wage of the teachers because of the contemporary need for professionalization of teaching

O direito à saúde e a política nacional de atenção oncológica: uma análise a partir da crescente judicialização dos medicamentos antineoplásicos

The 1988 Federal Constitution of Brazil by presenting the catalog of fundamental rights and guarantees (Title II) provides expressly that such rights reach the social, economic and cultural rights (art. 6 of CF/88) as a means not only to ratify the civil and political rights, but also to make them effective and practical in the life of the Brazilian people, particularly in the prediction of immediate application of those rights and guarantees. In this sense, health goes through condition of universal right and duty of the State, which should be guaranteed by social and economic policies aimed at reducing the risk of disease and other hazards, in addition to ensuring universal and equal access to actions and services for its promotion, protection and recovery (Article 196 by CF/88). Achieving the purposes aimed by the constituent to the area of health is the great challenge that requires the Health System and its managers. To this end, several policies have been structured in an attempt to establish actions and services for the promotion, protection and rehabilitation of diseases and disorders to health. In the mid-90s, in order to meet the guidelines and principles established by the SUS, it was established the Política Nacional de Atenção Oncológica PNAO, in an attempt to sketch out a public policy that sought to achieve maximum efficiency and to be able to give answers integral to effective care for patients with cancer, with emphasis on prevention, early detection, diagnosis, treatment, rehabilitation and palliative care. However, many lawsuits have been proposed with applications for anticancer drugs. These actions have become very complex, both in the procedural aspects and in all material ones, especially due to the highcost drugs more requested these demands, as well as need to be buoyed by the scientific evidence of these drugs in relation to proposed treatments. The jurisprudence in this area, although the orientations as outlined by the Parliament of Supreme Court is still in the process of construction, this study is thus placed in the perspective of contributing to the effective and efficient adjudication in these actions, with focus on achieving the fundamental social rights. Given this scenario and using research explanatory literature and documents were examined 108 lawsuits pending in the Federal Court in Rio Grande do Norte, trying to identify the organs of the Judiciary behave in the face of lawsuits that seeking oncology drugs (or antineoplastic), seeking to reconcile the principles and constitutional laws and infra constitutional involving the theme in an attempt to contribute to a rationalization of this judicial practice. Finally, considering the Rational Use of health demands and the idea of belonging to the Brazilian people SUS, it is concluded that the judicial power requires ballast parameters of their decisions on evidence-based medicine, aligning these decisions housing constitutional principles that the right to health and the scientific conclusions of efficacy, effectiveness and efficiency in oncology drugs, when compared to the treatments offered by SUS

Intervenção judicial nas sociedades limitadas em face da liberdade de iniciativa

The judicial intervention in limited liability company goes through several issues of legislative and hermeneutics origin, based considerably on the small importance given to freedom of economic initiative by the participants in the process of formation and application of the law. In addition, Brazilian law, due to incompleteness, inconsistency or lack of valid grounds, put the judge in a procedural delicate situation. Being forced to judge, the judiciary faces severe uncomfortable interpretive situations, of which derive solutions of dubious constitutionality and affecting, significantly, the dynamics of business activity. In this context, and considering the limited liability company as an expression of free enterprise, corresponding to a lawful association of people in order to undertake economically, in exercise of his freedom of contracting and professional action, intended to be offered safe parameters of constitutionality for judicial intervention in limited liability company in the hypothesis of (i) transfer of corporate shares, (ii) attachment of corporate shares, (iii) dismissal of directors, (iv) appointment of judicial stakeholders, (v) exclusion of shareholders and (vi ) trespass. The hypothetical-deductive approach was adopted, building hypotheses to overcome the gaps and unconstitutionality of the law and subjecting them to tests, reviews, and comparisons with hypothetical facts and case law in order to determine the constitutional validity of the proposed solutions. The procedure aimed to reconcile the historical, comparative, dialectical and scientific methods. The roots of temporal institutes were researched as well as current solutions provided by national and compared law. From problematizations point, addressed by the constitutional interpretation of the law and jurisprudence, responses that bring out the unconstitutionality of certain conceptions were headed

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 mediação como instrumento concretizador do direito fundamental à saúde: uma alternativa à judicialização de conflitos Natal 2013

In Brazil, the 1946 Constitution enshrined the right to health, having it defined as the possession of the best state of health that the individual can achieve. Already the Federal Constitution of 1988 lifted that right to the status of fundamental social right, which transcends the effectiveness and cure of the disease is based on the joint liability of public entities for the provision of a quality service, efficient and prioritize human dignity and comprehensive evaluation of patients. According to the World Health Organization, the definition of health, first characterized as the mere absence of disease, has become recognized as the need to search for preventive mechanisms to ensure the welfare and dignity of the population. Garantista this context, the growing seem lawsuits that deal with the implementation of public policies, especially in the area of the right to health, the omission of which the Government can result in the risk of death. Hence the concern of law professionals about whether or not the intervention of the judiciary in cases that deal with providing material benefits of health care. It claims to break the principle of separation of powers, disobedience to the principle of equality and the impossibility of judicial intervention in the formulation of public policy to try and exclude the liability of public entities. In contrast, the judiciary has repeatedly guardianships granted injunctions or merit determining the supply of materials indicated by the medical benefits that accompany the treatment of patients who resort to a remedy. In this context, mediation, object of study and resolution presented in this work, is presented as an instrument conciliator between the reserve clause and the right to financially possible existential minimum, as it seeks to serve all through rationalization of health services , avoidance of negativistic influence of the pharmaceutical industry, with prioritizing the welfare of the individual and the quality of relationships. This is alternative way to judicialization that in addition to encouraging and developing active citizen participation in public policy formulation also allows the manager to public knowledge of community needs. It is in this sense that affirms and defends the right to health is no longer the mere provision of medical care and prescription drugs, but a dialogue conscious existential minimum to guarantee a dignified life

As zonas de processamento de exportação como instrumento de desenvolvimento e redução das desigualdades regionais

The existence of inequalities among the Brazilian regions is an indeed fact along the country s history. Before this reality the constitutional legislator inserted into the Federal Constitution of 1988, as a purpose of the Federative Republic of Brazil, the reduction of regional inequalities. The development has also been included as a purpose from the State, because there is an straight relation with the reduction of regional inequalities. In both situations is searched the improvement of people s living conditions. . In pursuit of this achievement, the State must implement public policy, and, for this to happen, it needs the ingress of income inside of the public coffers and support of economic agents, therefore the importance of constitucionalization of the economic policy. The 1988 s Constitution adopted a rational capitalism regime consentaneous with current legal and social conceptions, that s why it enabled the State s intervention into economy to correct the so-called market failures or to make the established objectives fulfilled. About this last one, the intervention may happen by induction through the adoption of regulatory Standards of incentive or disincentive of economic activity. Among the possible inductive ways there are the tax assessments that aim to stimulate the economic agents behavior in view of finding that the development doesn t occur with the same intensity in all of the country s regions. Inside this context there are the Export Processing Zones (EPZs) which are special areas with different customs regime by the granting of benefits to the companies that are installed there. The EPZs have been used, by several countries, in order to develop certain regions, and economic indicators show that they promoted economic and social changes in the places where they are installed, especially because, by attracting companies, they provide job creation, industrialization and increased exports. In Brazil, they can contribute decisively to overcome major obstacles or decrease the attraction of economic agents and economic development of the country. In the case of an instrument known to be effective to achieve the goals established by the Constitution, it is duty of the Executive to push for the law that governs this customs regime is effectively applied. If the Executive doesn t fulfill this duty, incurs into unjustifiable omission, correction likely by the Judiciary, whose mission is to prevent acts or omissions contrary to constitutional order