Cumprimento de ordens, obediência hierárquica e disciplina militar versus perpetração (in)voluntária de crimes

Following orders, hierarchical obedience and military discipline are essential values for the survival of the armed forces. Without them, it is not possible to conceive the armed forces as an essential pillar of a democratic state of law and a guarantor of national independence. As issuing orders as well as receiving and following them are inextricably linked to military discipline, and as such injunctions entail the workings of a particular obedience regime within the specific kind of organized power framework which is the Armed Forces, only by analysing the importance of such orders within this microcosm – with its strict hierarchical structure – will it be possible to understand which criminal judicial qualification to ascribe to the individual at the rear by reference to the role of the front line individual (i.e. the one who issues an order vs the one who executes it). That is, of course, when we are faced with the practice of unlawful acts, keeping in mind the organizational framework and its influence over the will of the executor. One thing we take as read, if the orders can be described as unlawful, the boundary line of the duty of obedience, which cannot be overstepped, both because of a legal as well as a constitutional imperative, will have been crossed. And the military have sworn an oath of obedience to the fundamental law. The topic of hierarchical obedience cannot be separated from the analysis of current legislation which pertains to the topic within military institutions. With that in mind, it appeared relevant to address the major norms which regulate the matter within the Portuguese military legal system, and, whenever necessary and required by the reality under analysis, to relate that to civilian law or legal doctrine.

O incumprimento do contrato de crédito ao consumo pelo consumidor

Consumer relations, established between the Consumer and the Creditor, which carry a consequent inequality of contractual positioning between the parties, have been pushing the legislator to adopt more rigid regulations with regard to lending for the purchase of goods or services of consum issues. In this sense, the Decree-Law 359/91 was approved, meanwhile repealed by the Decree-Law 133/2009, which regulates the consumer credit agreement’s regime in the portuguese legal system. Through this contract, the financier makes available to the consumer a certain amount of money, which the consumer must repay, plus the respective remuneration (interest) and other charges, according to a refund plan agreed by the parties. The consumer will be in delay if he breaches this stipulation. In case of default, the creditor, notwithstanding, can choose to wait for the performance by the debtor, promote the loss of benefit of the term or the termination of the contract. From the outset it would seem that, in one way or another, the financier, by imposing a forced shortening of the contract duration initially agreed, will lose the right to remuneration for the provision of capital agreed, but not verified. Nevertheless, unlike presently, the previous regime allowed the parties to rule otherwise, being permitted to agree to the payment of interest of outstanding installments. On the other hand, in the consumer credit contract the principle of freedom of contractual provision of the parties is strongly mitigated by the special legislation, which prevents the waiver of rights by the consumer, and by the regime of general contractual terms, which restricts the freedom of the financier to stipulate the contractual content freely and the freedom of the consumer to negotiate. For all these reasons, associated with the growing need of credit resource to satisfy their needs of consumption, it is confirm the relevance of legislative intervention on consumers protection in the context of hiring credit.

O incumprimento do contrato de crédito ao consumo pelo consumidor

Consumer relations, established between the Consumer and the Creditor, which carry a consequent inequality of contractual positioning between the parties, have been pushing the legislator to adopt more rigid regulations with regard to lending for the purchase of goods or services of consum issues. In this sense, the Decree-Law 359/91 was approved, meanwhile repealed by the Decree-Law 133/2009, which regulates the consumer credit agreement’s regime in the portuguese legal system. Through this contract, the financier makes available to the consumer a certain amount of money, which the consumer must repay, plus the respective remuneration (interest) and other charges, according to a refund plan agreed by the parties. The consumer will be in delay if he breaches this stipulation. In case of default, the creditor, notwithstanding, can choose to wait for the performance by the debtor, promote the loss of benefit of the term or the termination of the contract. From the outset it would seem that, in one way or another, the financier, by imposing a forced shortening of the contract duration initially agreed, will lose the right to remuneration for the provision of capital agreed, but not verified. Nevertheless, unlike presently, the previous regime allowed the parties to rule otherwise, being permitted to agree to the payment of interest of outstanding installments. On the other hand, in the consumer credit contract the principle of freedom of contractual provision of the parties is strongly mitigated by the special legislation, which prevents the waiver of rights by the consumer, and by the regime of general contractual terms, which restricts the freedom of the financier to stipulate the contractual content freely and the freedom of the consumer to negotiate. For all these reasons, associated with the growing need of credit resource to satisfy their needs of consumption, it is confirm the relevance of legislative intervention on consumers protection in the context of hiring credit.

Relatório de estágio no departamento central de investigação e acção penal

The means of obtaining evidence, the amount of evidence obtained, the number of defendants related to each criminal case and the gravity of the crimes for which the magistrates of the Department are holders of penal action, define its real importance to the Rule of Law. I have deeply studied the subject of the institution of hierarchical intervention required by the assistant and the application of an opening statement by the defendant, starting from a hypothetical case, provided when the query of an investigation with the subject of the crime of active corruption, where this institution was called as a reaction to the archiving dispatch delivered by the Public Ministry. I have study about the implementation of the institution of provisional suspension of the process, specifically in the scope of fiscal criminality, analyzing the effective satisfaction of the purposes of the sentences in two slopes: general prevention and special prevention. I went for my first time to a Central Court of Criminal Instruction, where I attended the measures of inquiry and instructive debate of a process that culminated with the prosecution and pronunciation of the defendants. In addition to this criminal experience, I have deepened and consolidated the academic knowledge with the study of various criminal cases from various fields in the scope of criminality investigated by the Department. I could therefore check the basis of procedural delays, regarding to our legal system, especially in this type of crime, raising issues that I analyzed and discussed, always in a critical and academic way. I had the opportunity to attend and witness a seminar in the Lisbon Directorate of Finance as well of entering the Centre for Judicial Studies to attend a conference on the International Anti-Corruption Day. Focus on the investigatory importance of the international judicial cooperation, through the various organs, with special interest to EUROJUST. I comprehended the organization and functioning of these communitarian organs and means of communication of procedural acts, in particular, the rogatory letters and european arrest warrants. This involvement is motivated by the moratorium factor of the investigations where rogatory letters are necessary for the acquisition of evidence or information relevant to the good continuation of the process. For this reason the judicial cooperation through the relevant communitarian organs, translates a streamlined response between the competent judicial authorities of the Member States, through the National Member that integrates EUROJUST. This report aims to highlight some of the difficulties and procedural issues that Public Prosecutors of DCIAP and criminal police bodies that assist them, face in combating violent and organized crime, of national and transnational nature, of particular complexity, according to the specifics of criminal types.

Os direitos dos animais

This work has the purpose of presenting the current state of the debate concerning animal rights, both in the Portuguese legal system and in foreign systems. In order to do so, it starts with an analysis of the evolution of the legal status of animals through History, and the status they have achieved in today’s legal systems. The aim of this work is to reflect upon the challenges that would result from a change of position regarding this subject, from the current legal classification as things, to a complete personalization based on the Constitution, or through the creation of a tertium genus between Men and things, that would stress the fact that animals are sentient beings.

"A testemunha-vítima e o dieito de recusa de depoimento, no Código de Processo Penal

Study of the problems involved in the application of the right of refusal to testify (Article 134. º CPP) to criminal charges of domestic violence, namely in situations of violence between spouses. Drawing attention, to some of the contingencies of the exercise of the right of refusal in such proceedings, a matter never before examined under Portuguese law, and also to the need to reconsider, based on the North American experience, the application of the law in these cases.

Relatório de estágio curricular realizado na Comissão Nacional de Protecção de Dados

The personal data protection is presented as an indisputably complex and transversal subject and gives an account of this report, a result of curricular internship at the Portuguese Commission for Data Protection. The Commission is the competent authority for the control and supervision of personal data processing. The subject around which this report was prepared is the protection of personal data, analyzed in several aspects. The protection of personal data is, for some time, a topic that raises many concerns, because it is closely linked to fundamental rights constitutionally protected. Fundamental rights inherent in each of us are a result of Article 1 of the Constitution of the Portuguese Republic, in the sense that the dignity of the human person is affirmed as the first value around which the Portuguese legal system will have to be based. In other words, is the dignity of the human person the highest value in the Portuguese legal system. Was the development of societies to the point that we know today that has led to the importance to the personal data of citizens. In modern societies, it is possible to know everything about everyone and the curiosity of others seems not to worry about the injuries that affect the rights of citizens. Where new technologies make excuses for the excessive processing of personal data and where subjects do not seem to bother about their personal data crossing the world, it is important that jurisdictions give value the protection of personal data and the implications of its misuse, in that as these are the mirror of identity each of us and can be used against their owners, causing irreparable damage to the their fundamental rights. Being understood as protection of personal data the possibility of each citizen to decide the use of their data and how they can be used, we can say that its protection depends essentially on each of us, as holders of personal data. Therefore, the protection of our data begins in ourselves.

Guarda prisional: força de segurança ou agente responsabilizador?

A permanently changing occidental society framework, simultaneously, to a world Globalization and a market liberalization, requires to know how important and which role the agents plays, in Estates representation, to guarantee their own intern security. Portugal is an example of that since has been integrated in European and world politics that allowed the borders opening, with all the negative consequences of that kind of measures. In way to struggle with those debilities emerge, in our Juridical Order, several security forces such as Prison Guards Corporation, whose contribute to intern security seems undefined and confuse, being urgent legislation in way to describe and clearly define their goals and functions. We begin with a brief history view to understand the evolution, focusing on the present moment, correlate several laws in way to clarify their juridical situation. Using a own critical sense, it draws attention to legislation lack problem in opposition to the conclusion that, Prison Guards Corporation is a security force with specialized expertise in matter and territory fields. Their activity occurs, generally, in penitentiaries where people see themselves without their freedom, legally determinated and confined to places as other individuals with deviant behaviors that deserve society refutation, establishing a separation period having rehabilitation as a goal – it is called general and special prevention. Penitentiaries specificities requires specially police force because penitentiaries are places where tensions are often, both between inmates and against employees, above all prison guards, the first to struggle inmates daily frustrations. In way that institutions achieve their purpose, it is necessary that citizens respect all the rules, although, to their efficacy is necessary to inflict punishment to those who did not respect the rules. Furthermore, it will be indispensable to act immediately in situations as impeding runaway helping, illegally standing in jail and to avoid violent acts against personal and patrimonial belongings. Juridical Order has a few security tools that are available to administration, in which is included coercive methods, that as damaging to citizens in whom they are use, are restricted, unavoidably, to inflexible control rules. Concluding, Prison Guards and Penitentiaries General Direction last goal is to give back recovered inmates to society, in a way to conduct their lives responsibly, without committing crimes.

A videovigilância no local de trabalho

The emergence of new technologies has introduced significant changes in the citizens life’s. There is a constant evolution of technological means and profound impact of their use in the habits of life of the human being. These new technological media are important tools in labor relations. The working and businesses worlds are increasingly turning to these new technologies, so that the use of video surveillance in the workplace is nowadays common. New technologies in general and the use of video surveillance in workplace in particular are providing ways to allow control of the work performance that are desired by most employers. However, the collection of images in the workplace often collides with the fundamental rights and freedoms of workers, in particular, with the right to privacy. The subject concerns the question of investigating is whether the images collected in workplace can be used as evidence in disciplinary proceedings. In fact, this issue is controversial. Doctrine and jurisprudence defend, at least, two responses for the same question. Those who understand that the evidence may be admitted for not violate any right of the worker, and others who argue that the evidence should not be admitted in disciplinary office. In the Portuguese legal system, there is, even, a new intermediate theory that begins to be defended, that only on certain occasions the evidence may be admitted. The solution to this problem involves the study of employment law and data video surveillance processing. Analysis of workers fundamental rights is fundamental to come to a grounded conclusion.

Cláusulas de garantia e segurança

Contractual provisions directed towards the fulfillment of the contract itself or concerning the promisor’s conduct are nowadays widespread (both geographically and regarding the situations in which they are used), posing interpretative problems that demand the consideration of private autonomy’s extent and its limits on their application. A number of such clauses or covenants proliferate on all sectors of juridical activity, although with different configurations in each particular situation, whereby the study of negative pledge, pari passu, cross-default and ownership clauses merely constitutes a conceptual framework for considerations concerning the virtues and challenges of this type of contractual arrangements, particularly in relation to the precepts of the legal system as a whole. This study also aims to display the special characteristics that justify their prevalence in banking and financial law. We intend to analyze their, mostly preventive, function, typifying the main problems that arise, as well as their limitations and advantages.

A culpa do serviço como fundamento do dever de indemnizar por parte da Administração Pública

Avec l’évolution de la conception de l’État social de droit et avec la modification de la conception des relations entre l’administration publique et ses fonctionnaires, l’idée d’un État irresponsable a commencé a disparaître et à donner lieu à une responsabilité administrative toujours en croissance envers des actions ou des omissions qui portent préjudice aux particuliers. Après un comportement négligent, et avec un retard significatif par rapport au système français qui l’ a inspiré, l’ordre juridique portugais a accueilli, d’abord dans la jurisprudence, ensuite dans la doctrine et, finalement, dans la législation, avec la lo i, nº 67/2007 du 31 Décembre, la figure de la faute du service. Cet institut fonde le devoir de l’administration publique de dédommager l’individu lésé, même si ce n’est point possible d’avérer l’ auteur individuel et concret du préjudice. On considère que il y a eu un fonctionnement irrégulier et le service publique, en général, en est responsabilisé.

Relatório de estágio curricular

The purpose of the current internship report is to share the opportunity I have had to learn during my stay in CMVM as an intern, specifically in relation to the exercise of private equity supervision in Portugal, in order to contribute to the study of private equity legal framework. Private equity is the activity to finance or acquire enterprises with growth potential (normally consider as genuine industry), for a limited period of time, in order to support the enterprise’s development to benefit from future profit sales of participations. By observing and studying the registration procedures, as well as the specific legislation and reality of other jurisdictions, it is concluded that supervision specifically related to private equity is one of the most important aspects in this industry, as it is the best way to know and control it. To improve the performance of supervisory functions, and the very development of private equity, it is essential to have a legislative review in order to simplify the rules enforcement necessary for the proper running of the industry as well as for more efficient supervision and control of this activity, thus developing it and making it more attractive in a national and international basis.

A liberalização do mercado energético e o papel das entidades reguladoras

The liberalisation of the energy market goes back to the 1990s, when it was impelled by the European legislator. Since then, three legislative packages, temporarily successive, were approved. Those packages contained the measures to be implemented in order to deepen the internal energy market. Besides the opening up of several national markets to competition, the European legislator aimed the creation of a real internal energy market within the European Union. The unbundling regime was one of the most important steps with respect to the liberalisation process. The introduction of these rules ensured independence to the various market operators. A real and effective right of choice was granted to the consumers so they may choose their electricity and natural gas supplier. Therefore, the activity of comercialisation is subject to competition. However, some activities of the electricity’s and natural gas’ chain of value, namely the activities of transportation and distribution, were kept under regulation rules. Even though it may seem odd, the assignment of important competences and strong powers to a regulatory authority was essential in order to achieve the liberalisation process’ goals. Electricity and natural gas are essential public goods; therefore the market operators are legally bound to public service obligations, such as the security, the universality and the continuity of the supply. The performance of these obligations may become, in some cases, unprofitable for those operators. For such reason, the protection of the consumers’ rights shall only be properly defended if there is a regulatory authority that monitors the behaviour of the operators and sanctions the failure to comply with the public service obligations. Portugal, as a Member State of the European Union, transposed into the national legal order the European directives concerning the liberalisation process. This transposition has caused radical changes to the electricity and natural gas’ national markets. The Entidade Reguladora dos Serviços Energéticos also suffered various mutations in order to keep up with the regulatory demands regarding the liberalisation process.

The recognition of rights to same-sex couples: the path towards a pluralistic concept of family

This paper presents the final results of the research project undertaken in 2010 and 2011 by the legal research group “Filius”, affiliated with Corporación Universitaria Empresarial Alexander von Humboldt of Armenia, (Quindío). The project’s general objective is “to establish the concept of family used by the Colombian legal system based on the judgments of the Constitutional Court granting rights to same-sex couples”. To this end, a line of jurisprudence was developed from the Court’s rulings that discussed the rights of same-sex couples, concluding that despite the great progress made in Colombia on the recognition of rights to these couples following Decision C-075/2007, in all these judgments the Court had always refused to recognize their family status, and it was not until 2011, in Decision C-577, that the Court accepted that same-sex couples constitute a family, thereby dramatically changing the constitutional doctrine that had maintained the criteria of heterosexuality as defining family.

Los supuestos de aplicación del administrador de hecho: un análisis del caso español a propósito de la sociedad por acciones simplificada

El régimen de responsabilidad patrimonial de los administradores en el ordenamiento jurídicocolombiano se caracterizó, antes de la irrupción de la sas, por un carácter marcadamenteformalista. No obstante, la Ley 1258 de 2008 amplió el ámbito subjetivo de aplicación delaludido régimen, al incorporar la figura del administrador societario de hecho. En este sentido,el estudio de la responsabilidad de los administradores recibe con la Ley SAS un nuevoimpulso, con el fin de que juegue un papel aún más representativo en Colombia. Así las cosas,en el presente artículo, se estudian los diferentes supuestos o circunstancias para la aplicaciónde la figura del administrador de hecho en el caso español, con miras a su aplicación en elentorno societario colombiano.