O choque das culturas da ordem

Coordenação de Aperfeiçoamento de Pessoal de Nível Superior

Ordem econômica e política nacional de recursos hídricos: hermenêutica constitucional para o desenvolvimento sustentável

This research proposes a study about the interpretative techniques application that are compatible with the national legal system under the principles for Sustainable Development characterized in Brazilian Constitution. It verifies the actual possibility of reconciliation between national development and environment protection, with reflections under the water legal protection. It was proposed, therefore, to point subsidies for jurisdictional decisions involving development and the environmental goods, protected as constitutionally guaranteed principles. It was assumed that, both development and environment protection represents basic rights that are eventually placed in conflict situations, considering the many legitimate economic activities within the Brazilian State. A representative case analysis was elected within the current national scene, detailing the judicial and political conflict involving the Transboundery water Project from the São Francisco River Basin to another Northeastern river basin in Brazil. The implementation of several constitutional principles with elements from legal hermeneutics provides subsidies for the legal analysis about the conflict between development and environmental protection. It was assumed that the main discussion item about rights due to development today is the institutions influence and their results, among them the rules, laws and interpretative elements for the constitutional text objectivity, as the institutions credibility and the Supreme Courts interpretations. The use of interpretative resources for specific conflict situations about constitutional principles by Superior Courts, on the search, would bring a contributory factor for decision safety, related to sustainable development principles, elimination of inequalities and regional protecting for the environment. Specific aspects of Law No. 9.433/97 that introduced the National Water Resources Policy were examined, with its instruments, in order to specifically contextualize aspects of the Brazilian water resources management politics

O desenvolvimento sustentável na ordem constitucional e sua promoção através do planejamento urbano

The man, being subject and object of their changes, has passed by many process to find a better life way. Since your existence, he finds to live in groups for make easy your life and make concrete yours desires. All by history, when the individual´s rights was establishment, collectives and lonely way, contribute for evaluate the relationship between individuals and they own, and them and state, which has a duty to those, positive or negative, depending on the case. The circle of fundamentals rights has been sustainable development and the concept of growth economy associated to the environment protection. This association reflect a apparent conflict between values very distinct, but the constitutional interpretation can be reunite both of them and make it live in harmony; values of environmental order and economical order can be exist together, as long as the state contribute to this. On the city, where the most of relationships happening, the urban plan appear how a effective way of sustainable development, finding the harmony between the growth economy and environment protection. To effective the socials functions of the city (inhabit, circulate, work and entertainment) and the citizen´s life quality, the city is the scenery that show how the urban plan, across established previously legal instruments, like the governmental public politics, to effective the right to development, right of third generation. The director plan how effective tool for local needs - obligation defined by Citizen Statute that contribute for the program linked defined by the urban plan. The state´s intervention on the private sector of citizen, and the restriction on their rights are be justified by the collective´s rights and their quality of life. So, in front the urban scenery has been the plan to make social functions of city, the healthy way of life, which is the sustainable development

Os antagonismos da integração sul-americana na ordem jurídica brasileira

The economic regional integration is a phenomenon observed in numerous occasions inside the global economic reality. Watchful to that phenomenon, the 1988 s Brazilian constitutional order establish in its 4th article, single paragraph, the commitment to seek for the Latin- American integration, as a Fundamental Principle to the Brazilian Federative Republic. Regarding the mentioned constitutional disposition s realization, the Brazilian State celebrated, specially, the 1980 s Montevideo Treaty, creating the Latin-American Integration Association, and the 1991 s Asuncion Treaty, performing the duty to establish a common market, in sub regional level, with Argentina, Paraguay and Uruguay, called Mercado Comum do Sul. However, due to an addiction to a wrong comprehension of State s Sovereignty Principle, the Constitution imposes to the international rules an incorporation process, without providing any privilege to those ones regarding the integration constitutional disposition s realization, whether original or derived. The Brazilian s Supreme Court, as matter of fact, affirmed that it is not possible, facing the actual constitutional order, to grant any character of preference. Also in the controversies solution mechanism, responsible for the law s execution in case of its noncompliance, where found malfunctions, most notably the system s open character and its excessive procedural flexibility, in addiction to restricting the access of individuals. It follows from these findings, then, the lack of legal certainty provided by the Mercosul s legal system, considering its effects both international and within the Brazilian state. Among the possible solutions to reduce or eliminate the problem are using the practice of the so-called executive agreements in the Mercosul s original rules incorporation to the Brazilian state, the creation of a Mercosul s court of law and/or a constitutional reform

A constitucionalização da solução pacífica de conflitos na ordem jurídica de 1988

In the Brazilian legal context, conflict resolution is studied and analyzed over a majority jurisdictional view, which is one of the reasons of litigation culture that creates a jurisdictional resolution hopeness. The practical impact of such reality is the loss of quality in the public service of the judicial function, moved, as a rule, by the overcrowdings, slowness of legal procedures and the relegation of peaceful resolution methods to peripheral plan. However, the Federal Constitution of 1988, following the Ordinary Law constitutionalization phenomenon provides specific guidance about the values towards the litigation resolution. The study, therefore, aims to approach the constitutionalization of conflict resolution in order to identify, through scientific and spiritual interpretation in conjunction with the systematic paradigm, what are these values, as well as operation and legal representation and practice of these measurements. In this sense, the thesis is to study the initial point of the analysis of conflict theories and explanations about the culture of litigation matched with concepts of creation and interpretation, constitutionalization, access to justice and social pacification public policies. It is used for this purpose, the logical-deductive method with the aid of the dialectic immanent in Law

As sanções políticas, mecanismo de intervenção do estado na ordem econômica e tributária

This work pursues to analyze the sanctions of restrictive nature, which are characterized by impeding the business of the contributor in debt. Such sanctions known as political sanctions, are truly understood as an indirect way of tax enforcement, liable to cause problems to the private entity in curtailing, the initiative freedom, opposing the Article 5°, item XIII and Article 170, single paragraph of CF/88. As the State gets the several means to assure the economic order effective performance, it is up to the State to restrain the economic power abuse that objects to the marketing domination, to the ending of competition, and arbitrary increasing of profits (CF Article 173, § 4ª.) Therefore, it depends on the state, besides maintaining the economic order, to ensure a fair distribution of tax burden and act under the command of the Democratic State of Law principles. In order to make the tax collection effective, specific in some cases, the administrative fiscal agent uses coercive, excessive, and institutional, in imposing sanctions which causes constraint, maculating the contributor s essential rights, that matters of the necessity to force the tax credit ending. The principle of the free initiative and free competition, which are intended to be analyzed in this study, comes from a constitutional context and it will be reviewed in its systematic relations and with another rules, in order to evidence, at the end, the occurrence of an intervention towards the economic order when the State makes do of political sanctions as a tool for the tax credit effectiveness, infringing the Tax and Constitutional principles

Desenvolvimento energético e energia eólica na ordem jurídica do Brasil: aspectos Institucionais e Socioambientais

A conformação do desenvolvimento propugnado pela Constituição Federal de 1988 como objetivo fundamental da república, certamente perpassa pela racionalização das questões energéticas e pela diversificação da matriz nacional enquanto estratégia de aprovisionamento. O desenvolvimento energético em toda a sua complexidade deve ser alicerçado não em uma relação de contraposição à sustentabilidade, mas cooperativismo normativo e de projetos sociais que objetivam a melhorias para a população nestes dois seguimentos. O advento das energias renováveis nesse contexto se consolida como uma alternativa viável, apesar do tratamento dado pela Lei Maior ao tema ter sido apenas com relação à geração em pequena escala. A interpretação sistemática dos postulados da ordem econômica e as exigências da sociedade estimulam o aproveitamento dos potenciais renováveis em escala comercial e regional, além do fortalecimento nos segmentos de autoprodução e produção independente. Dentre as energias tratadas como prioritárias neste contexto, a eólica revela-se como carecedora de aprofundamento das estruturas dogmáticas de sua positivação, que envolve um vasto manancial de regras pulverizadas na regulação econômica do setor elétrico e no controle ambiental. Esta textura submete os empreendimentos elioelétricos aos instrumentos da política nacional do meio ambiente e às determinações do poder concedente dos serviços de energia elétrica, responsável pela pormenorização da geração, transmissão, distribuição e comercialização de energia, independentemente da fonte primária utilizada no processo de transformação. Tratar destas questões com o compromisso na formulação de raciocínios críticos e propositivos, especialmente acerca de temas como a liberdade energética e controle de mercado, é imperioso para superar juridicamente as limitações presentes inclusive no discurso da delimitação de marcos normativos adequados. Havendo vantagens ambientais, tecnológicas e comerciais na exploração da energia cinética do vento como propulsora do desenvolvimento no modelo civilizatório estabelecido, cumpre também ao Estado dar a sua contribuição setorial na forma de incentivos, desburocratização e aprimoramento do modelo concorrencial. O estudo adota os métodos histórico-evolutivo, dialético e sistêmico de abordagem, encarando as hipóteses formuladas no aspecto das consequências multilaterais que as soluções encontradas apontam, exigindo que a estabilização de expectativas sociais por parte do ordenamento jurídico não ignorem o sentido material cognitivamente aberto do desenvolvimento. Hodiernamente, a perspectiva de desenvolvimento energético alia tendências econômicas e tecnológicas em favor das fontes alternativas mais eficientes, revelando a energia eólica como uma representante adequada em termos pragmáticos de normatização e preservação ambiental

Contribuição ao estudo da isonomia na tributação sob a perspectiva da ordem econômica

The study aims to investigate the limits of state intervention via induction on Economic Order, especially in cases regarding tax equality, through the analysis of their effects on economic development and on free competition from the perspective of economic efficiency and the Constitution. Thus, the work seeks to demonstrate that the achievement of equality in taxation is important in that it strengthens the economic relations in terms of efficiency, protects competition and fosters economic development to reduce regional and social inequalities and other constitutional desiderata. A dissertation is characterized by interdisciplinarity and was divided into two parts. The first is to discuss the legal meaning of equality from the doctrinal analysis of the principle and the relationship between equality and justice in the economic sense without rejecting its philosophical content. It is noteworthy that hermeneutics and the philosophy of language are useful tools for achieving equality in presenting the pragmatic methodologies applicable to the subject in terms of corrective justice. Based on these general assumptions, is going to study the tax equality and their characteristics, the corollary of the ability to pay and its relation to the economic capacity and the issue of progressivity in taxation as an ideal of distributive justice. The second part concerns the legal foundations of Economic Order and its relation to extrafiscality as a means of economic regulation in order to investigate the efficiency of this induction in order to promote economic development, free competition and tax equality itself to reduce inequalities and distributing wealth. Within this context, we investigated the scope of the constitutional principles of economic order, free enterprise and free competition, and favored differential treatment for small and medium enterprises, the issue of regional development for the reduction of regional and social inequalities, the problem the "fiscal war" and finally the efficiency from the perspective of Economic Analysis of Law

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

Processos carioevolutivos na ordem tetraodontiformes: uma visão através de suas diferentes linhagens

Given the great diversity of fishes, the Order Tetraodontiformes stands to show genetic and morphological characteristics enough singular. The fishes of this order have a compact DNA which favors molecular studies, as well as comparisons with more basal species. Model of genome evolution, there are still many gaps in knowledge about their chromosomal patterns and how evolutionary rearrangements influence the marked variation in DNA content of this order. In view of this, we present cytogenetic analyzes of the species Acanthostracion quadricornis (Ostraciidae), A. polygonius (Ostraciidae) Melichthys niger (Balistidae) Cantherhines macrocerus (Monacanthidae) and C. pullus (Monacanthidae), Lagocephalus laevigatus, Colomesus psittacus and Canthigaster figueiredoi (Tetraodontidae), to contribute with cytogenetic data for this group. The analysis was performed by C-banding, Ag-RONs, coloring with base-specific fluorochromes DAPI-CMA3, restriction enzymes AluI, EcoRI, TaqI, PstI and HinfI and in situ hybridization with probes for ribosomal DNA 18S and 5S. The heterochromatic ultrastructure of A. quadricornis and A. polygonius revealed a outstanding heterochromatin content, which may indicate that the accumulation or loss of extensive heterochromatin content could be responsible for large variations in genomic content displayed in different Tetraodontiformes families. The species Cantherhines macrocerus, C. pullus (Monacanthidae) and Melichthys niger (Balistidae) shows a huge karyotypic similarity both numerically and structural. L. laevigatus showed similar cytogenetic features (2n = 44 and single RONs) to the species of the genus Takifugu, which reinforces the idea of their phylogenetic relationships. C. psittacus presented the highest diploid number described for the family (2n = 56) and large amount of HC, features that related with its sister family Diodontidae. Cytogenetic analysis in C. figueiredoi revealed heterochromatic polymorphisms, RONs multiple and Bs chromosomes. These events are rare in marine fishes, and are possibly associated with the strong restructuring and genomic reduction that this family has been suffered. These features, plus the morphological and molecular data suggests that these species share the same ancestral branch, with a possible monophyletic origin. In this study, new contributions to the knowledge of evolutionary patterns facing by Tetraodontiformes are provided and discussed under cytotaxonomyc, genomic and evolutionary perspectives.

Finanças públicas na nova ordem constitucional brasileira: uma análise comportamental dos municípios potiguares, nos anos antecedentes e posteriores à lei de responsabilidade fiscal LRF

The object of the present dissertation is to analyze the behavior of the public finances of the districts of the state of Rio Grande do Norte (RN), taking as reference a period fundamentally previous to the implementation of the Fiscal Responsibility Law LRF, comparatively to the first years, immediately after the advent of the mentioned institutional milestone. The central hypothesis of this study proposes that, from the institutions' viewpoint, the LRF sets securely consistent rules, in the orchestration of the behavior of the municipal revenues and expenses. These regulations, on the other hand, might be effective and reach the districts of the RN indiscriminately, apart from stabilizing tendencies and which are sustainable in the long run. In spite of this, the indicators calculated reveal that the districts researched show, during all the period under analysis, a diminished capacity of self-tax collection , and consequently, a high participation of the intergovernmental transfers in the composition of the current revenues. This behavior indicates that the goal of strengthening the municipal public finances, forecast in the LRF, tends to be only partially accomplished, due to the fiscal decentralism. The analysis and interpretation of the data are conducted from the literature of institutionalist orientation and in descriptive statistical tools applied to the municipal strata of the state of Rio Grande do Norte. Further on, it's used the econometrical method Pooled OLS, which demands the elimination of the municipal strata in order to allow the use of the model, in the attempt to strengthen and/or ratify the results of the research. Finally, the evidence reached in the dissertation show that the LRF brings better conditions to the potiguar municipal public finances, predominantly to the economically stronger districts; whereas the less dynamic municipal entities show rather divergent evidence, that is, their economies seem to be more oriented to a more pronounced state participation; therefore, it generates in the state of RN a certain antithesis in the results reached in the dissertation

Em nome da ordem: a campanha de pé no chão na visão dos inquisidores

The main goal of this work is analyze the way which the Natal City Prefecture was constructed as a place of subversion by those we call defenders of the order, in the period right after the outbreak of military coup in 1964. To reach it, the main resource of search was the Relatório Subversão no Rio Grande do Norte , document produced from the investigations realized in Natal City Prefecture as a result of the Commission of Inquiry s work, established by the governor Aluízio Alves to determine the subversion in Rio Grande do Norte s society. Based on the anti-comunist speech. That document introduces other image of the Prefecture, which activities developed by de second Djalma Maranhão administration (1961-1964), specially those developed in the educational area, as the campaign De Pé no Chão Também se Aprende a Ler , were considered subversive , communist , dangerous , threatening , names that served as backing to embed Natal City Prefecture in the general view about subversion existing in Rio Grande do Norte, according to the repression speech in this initial period of military regime. Key-words: 1964 Military Coup Natal City Prefecture

Natal, outra cidade : o papel da Intendência Municipal no desenvolvimento de uma nova ordem urbana(1904-1929)

The present work regards, as its subject, the management of the urban space. It aims to survey the role assumed by the Conselho de Intendência Municipal de Natal (Municipal Stewardship Council of Natal) in the formation of a new urban order between the years of 1904 and 1929. For a better comprehension of the object of research, the milestone of the time span analyzed in this work was receded to the year of 1890, specifically at the first chapter of this dissertation. In this chapter, we will turn our attention towards an analysis of the referred council, on the regulation of its operation, the relations of this institution with the state government and its mechanisms of action in the city, among other topics. In the next chapter, we will delve into an elite who administrated the city of Natal during the first republic, understanding that the analysis of the formation of a modern city project by the Municipal Stewardship undergoes the comprehension of those who leaded this institution. In the third chapter, we will examine the limits of the municipal management to put into practice its projects to the upraise of a new Natal, between the years of 1904 and 1921. The last chapter, on its turn, presents a new Stewardship, reformulated after a process of administrative streamlining, and a city that transforms itself, especially during the O Grady tenure by receiving major constructions, which alter its main features. We will regard, as the main resources of this study, articles from the daily newspapers A República (The Republic) and Diário de Natal (Daily Natal), dictums, announcements, laws, state decrees and the messages disclosed by the state government. To build a way of analysis, we make use of authors such as Anthony Giddens, Peter Burke and Laurent Vidal, among many others who discuss concepts related to the proposed theme

Estimativa do fluxo de calor e da difusividade térmica do solo, baseado na solução da derivada temporal fracionária de meia ordem em ferramenta de software

The soil heat flux and soil thermal diffusivity are important components of the surface energy balance, especially in ar id and semi-arid regions. The obj ective of this work was to carry out to estimate the soil heat flux from th e soil temperature measured at a single depth, based on the half-order time derivative met hod proposed by Wang and Bras (1999), and to establish a method capable of es timating the thermal diffusivity of the soil, based on the half order derivative, from the temporal series of soil temperature at two depths. The results obtained in the estimates of soil heat flux were compared with the values of soil heat flux measured through flux plates, and the thermal di ffusivity estimated was compared with the measurements carried out in situ. The results obtained showed excellent concordance between the estimated and measured soil heat flux, with correlation (r), coeffici ent of determination (R 2 ) and standard error (W/m 2 ) of: r = 0.99093, R 2 = 0.98194 and error = 2.56 (W/m 2 ) for estimated period of 10 days; r = 0,99069, R 2 = 0,98147 and error = 2.59 (W/m 2 ) for estimated period of 30 days; and r = 0,98974, R 2 = 0,97958 and error = 2.77 (W/m 2 ) for estimated period of 120 days. The values of thermal di ffusivity estimated by the proposed method showed to be coherent and consis tent with in situ measured va lues, and with the values found in the literature usi ng conventional methods.

Regime jurídico dos incentivos fiscais: uma análise à luz da ordem econômica

This scientific investigation begins with the recognition of the authorization granted by the Constitutional Legislator to the State for, relativizing its neutrality towards the private sector, intervene in the behavior of economic agents, through different means, including fiscal incentives and tax increases in order to achieve the objectives and directives of the Federal Constitution, as well as achieve the rights and guarantees also described in the Federal Constitution. Demonstrates, however, that this intervention in the private sector has the power to generate both salutary reflections as perverse and divorced goals from what was established by the Federal Constitution and Multilateral Agreements and this is the basis that justifies the relevance of the study: because of the urgency to provide a thorough analysis of the phenomenon of state intervention in the Economic Order, given the importance of its impacts, both for citizens' lives, as well as for the maintenance of the State established as it is nowadays. From this premise, this research examines the issue of tax policies adopted in the country, focusing on tax incentives, comparing its use with the principles of the Economic Order and the General Agreement on Tariffs and Trade - GATT analyzing whether these have been respected or if Brazil adopted unjustified protectionist measures. From this context, this research approximated different branches of the law, developed through literature review in areas such as constitutional law, economic law, tax law, financial law and law and economics. This study verifies the motivations and objectives that underlie the adopted justifications for the use of tax incentives, as well as its results, seeking to empirically answer if its use is reasonable and consistent with the terms enshrined in the Federal Constitution of 1988 and GATT. The answer to this research question will be sought through doctrinal analysis, jurisprudence and hard cases. Thus, the study begins with the historical evolution of extrafiscality, analyzes the principles that should guide the behavior of economic agents. Subsequently analyzes the legal regime of tax incentives and the results achieved by hard cases in which the tax policies with extrafiscal nature were adopted in order to demonstrate the positive and negative consequences arising from the adoption of this type of benefit