Processo administrativo nas agências reguladoras: uma proposta de disciplina legislativa

O livro apresenta uma proposta de normatização das diferentes espécies de processos administrativos que tramitam nas agências reguladoras federais. Trata-se de uma coletânea de artigos que fornece fundamentação doutrinária para o anteprojeto de lei sugerido ao final. A pesquisa, realizada no âmbito do Mestrado Acadêmico em Direito da Regulação da FGV Direito Rio, busca trazer uma contribuição para o aprimoramento do arcabouço jurídico que embasa o exercício das funções regulatórias no país.

Gestão de pessoas, fato administrativo e racionalidades: um estudo em uma ONG de Natal-RN

This present work aimed to investigate, through the structuring element Fato Administrativo , the way rationality guides the processes of personnel management at the Associação Companhia TerrAmar , which operates in the district of Felipe Camarão in Natal/RN. This paper is characterized by a descriptive study, as it sought to establish the relationship between the materialization of the studied phenomenon - by means of a theoretical framework consisting of the following theories: Fato Administrativo (GUERREIRO RAMOS, 1983), Substantive and Instrumental Rationality (GUERREIRO RAMOS, 1981) and Proceedings of Personnel Management proposed by Joel Dutra (2004). As the main research findings, time as an intrinsic element of the Fato Administrativo - suffers much interference from external factors, especially from the sponsors of the researched organization and also from their bureaucratic control tools; not directly relating to the processes of Personnel Management, though. Among these, it was noticed that there isn‟t a dialogue between the sponsors and the theory, due to incompatibilities regarding the structure and nature of each organization. Both movement and development have stood out. These are processes that are guided by elements of substantive rationality, literally speaking, including personal, emancipatory and solidarity values. Thus, it is stated that for future research a compatible model of Personnel Management should be built and explored (compatible with the nature of nonprofit organizations). Understanding, in depth, the processes separately aiming to understand each work is also advised. Trying to fully understand the ways of overcoming the lack of skilled workers to perform activities in similar organizations needs to be considered as well

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

A eficácia, no ordenamento jurídico brasileiro, da responsabilização penal da pessoa jurídica pela prática de crimes ambientais

The environment, which fundamental importance has already been recognized in all the world, is an actual national and international discussion subject, whose interest grows for the society, and consequently to the Law, in order to prevent the natural resources to the present and future generations. The 1988 Brazilian Constitution, recognizing the importance of the environment, treated about it in many of its parts, even dedicating a specific chapter (Chapter V About Environment, inserted in Title VIII About Social Order). The brazilian constitutional text established to everyone the fundamental right of enjoying an equilibrated environment, obligating the State and all society to defend and preserve the environment to the present and future generations. The economic growing process, that predominated and still persist in the big majority of the countries, where is practiced the capitalist system, has in the enterprises (legal persons) one of its main actors. Many times, these enterprises, especially in the actual globalized world in where we live, where the gain of money is priorized, ends, at the moment they act, making damages to the environment. These damages are, many times, considered by the law. crimes against the environment. The 1988 Brazilian Constitution, according to the Modern Criminal Law, realizing that many crimes were being committed by the enterprises, established in article 225, §3rd, the criminal responsibility of the legal persons. Almost ten years after the 1988 Brazilian Constitution, was published the Law number 9.605/98, in which third article established the penal responsibility of the legal persons that practice crimes against the environment, without excluding the individual responsibility

A aplicação do acordo sobre subsídios e medidas compensatórias pelo estado brasileiro

The Multilateral Trading System has evolved and presented new international mandatory rules to States. Along with the World Trade Organization constitutive treaty, Brazil has incorporated the Agreement on Subsidies and Countervailing Measures (ASCM) in the national legal system. That treaty limits de scope of subsidies concession by governments since this practice can constitute a mechanism of commercial disloyalty, affecting national industrial development in the importing country. At the same time, the multilateral agreement grants defense legitimate instruments to States, among them the possibility of domestically and unilaterally imposing countervailing measures to subsidized products that enter the national territory. Since the issue concerns both international and domestic level in complementary grounds, this research, besides investigating the treaty related obligation, aims at studying the national legal fundaments to ASCM s application by the Brazilian State. Therefore, the essential point resides in the State s conduction of its international trading and also in its available and constitutionally established mechanisms of economic intervention. State s regulating power reveals itself as a fundamental prerogative to succeed in the internalization of international agreement s requirements in the domestic legal system, which represents a basic prerequisite to the implementation of countervailing measures. Once the whole normative outlines are apprehended, this study shall scan the administrative process of trading defense main elements, along with the means of controlling public administration acts. The action taken by the public organs that directly intervene in foreign trade shall be analyzed as well, so as to enable reasoning if the unilateral application of countervailing duties by the Brazilian State is happening on legitimacy grounds

A Competência normativa das agências reguladoras e seus limites principiológicos no direito brasileiro

The transition of the liberal state to welfare state, globalization and the crisis of funding from the government spending on the multiple roles demanded an overhaul of the means of intervention in the economic domain and structure organizational of the Public Administration by enhancing the performance of regulatory functions. Therefore appear in Brazilian law independent regulatory agencies with legal administrative particular that gives autonomy increased, with fixed terms and stability of its leaders, police and competencies, normative and administrative judges. In this scenario, given the autonomy granted by the laws of the creation of regulatory agencies, the legislative competence becomes the most contentious issue, as not infrequently is innovation in the legal system. The main foundations of innovative extension producible by regulatory agencies, which diverges doctrine, are the constitutional attribution of own competence of the Public Administration and the discretionary power. Thus, it is necessary to delimit the constitutional and legal foundations of special legislative powers of these autarchies in our legal system, seeking ways to limit and control the production rules of those entities, for the purpose of position them before the powers constitutionally constituted. We note that with the constitutionalisation of administrative law regulatory agencies found limits to its performance in the normative constitutional principles, especially through the principles of efficiency, morality and proportionality, which has enabled a more effective control of their normative acts

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

O Gênero requerimento na perspectiva sociorretórica: análise da produção de graduandos no ambiente acadêmico-administrativo da UFRN

In administrative settings of public institutions, many activities are conducted through writing practices. Concerning this, writing is always connected to an activity we intend to perform. Among those practices, the genre request consists of an instrument through which the requirer addresses to an institution in order to request something under the support of legislation. Considering our work experience in a public institution of higher education, we elected - as object of our research - the genre request produced by undergraduates within the administrative domain of the Federal University of Rio Grande do Norte (UFRN) due to its importance in this context. For this, the theoretical framework adopted refers to the socio-rethorical conception of genre studies, which understands the genre as forms as rhetorically typified action (MILLER, 2009a; SWALES, 1990; BAZERMAN, 2009). Regarding methodology, it is a research associated to a qualitative approach (BODGAN; BIKLEN, 1994; CHIZZOTTI, 2010) whose discussion inserts into the field of Applied Linguistics. The data were generated from samples of requests and their users replies in questionnaires, interviews and verbal protocols of writing. The data analysis is based on the ethnographic methods of genre analysis postulated by Devitt, Reiff and Bawarshi (apud JOHNS et al., 2006). These analyses indicated that the requests are not always fully accomplished due to a lack of comprehension about the genre and its rhetorical situation on the part of the producers. It must probably happen - among other reasons - because these students may not have understood that several factors, such as: context, audience and purpose, affect the text production. We believe that one possibility to make the practice of this genre more efficient is to develop a more simple and practical way of elaborating requests, taking the needs imposed by the rhetorical situation as a basis

Aspectos constitucionais da anulação de decisão definitiva da administração pública federal no processo tributário

Cet article traite de la possibilité de proposer le Trésor à la justice pour annuler une décision administrative définitive sur les questions fiscales. Il s'agit d'un sujet qui s'oppose au principe de la vérité matérielle - qui doit prévaloir en cas d'impôt - avec une certitude morale représentée par la chose jugée administrative. Commence par le processus administratif d'impôt comme une garantie constitutionnelle du contribuable, insérée dans le panorama d une compétence adoptée dans la législation brésilienne en tant que pilier de l'Etat de droit démocratique. Met l'accent sur la position du Trésor avant l'autorité de la chose jugée administrative, ce qui démontre la fragilité de La décision finale sur les questions fiscales. Décrit les effets de la révision (ou de l'annulation) dês actes administratifs, en particulier la libération de l'impôt et de la décision administrative qui vise à le confirmer. Enfin, nous discuterons de la composition et la légitimité du contentieux administratif, en conclusion, avec le soutien de la prévalence d'un fait important dans le cãs d'impôt, est non seulement possible, mais le Trésor devrait examiner leurs propres actions si nécessaire

Planejamento e ordenamento territorial do turismo na região metropolitana de Natal-RN

This work entitled "Planning and Tourism Territorial Management in the Metropolitan Region of Natal-RN" analyzes the tourism and its relationship to (re) production of socio-territorial inequalities in the metropolitan region of Natal (RMNatal) to from the planning and territorial management of the activity. For both, the methodological procedures were undertaken from research held about of literature on tourism, planning and territorial management, surveying and public policy analysis of tourism in national and local as well as the construction of levels of integration and differentiation of metropolitan municipalities in relation to tourism. Besides the shortage of studies on this subject, this research has shown that public policies focused on this sector has come under a great fragility in regard to tourism planning in Brazil and in Rio Grande do Norte, causing the planning activity is a strong array of fragmentation and socio-territorial inequalities in RMNatal

Faixas de proteção ambiental do Rio Pitimbu/RN: uma análise como subsídio ao planejamento e ordenamento do território

The Environmental Protection area sof Pitimbu river are important tools for planning and territorial land management. The Pitimbu river protection is aided in laws, so much of Federal stamp, as the Brazilian s Forest Code (Law No. 4771/1965), and in State s and City s Resolutions. So, this research begins in the State s Law No. 8426/2003interpretations, for being the most restrictive in the river's margin occupation and management. The objective is to analyze the applicability of the Environmental Protection areas of Pitimbu river, localized at the State of Rio Grande do Norte, considering environmental legislation and how to use this space by the man. Having specific goals for the discussion of the legislation s scope to this river; the identification of the types of soil s covering and evaluation the effectiveness of Law Nº.8426/2003, as protection instrument and land management. The river is characterized by its ecological importance and for feeding the Jiqui pond, an important reservoir that supplies 30% of drinking water to the east, west and south population sof the capital of the State. Pitimbu river is passing by a process of environmental degradation, originating from actions as deforestations of its ciliary forests by intensive agricultural practices; introduction of urban and industrial effluents leading to its contamination; increase of the pluvial drainage; erosion, sedimentation and discharge of urban waste , along with pressure for urban settlements along its banks. Under the methodological point of view is part of theoretical planning and land management research, and from a vision of social and environmental spaces. It was produced a survey map of the soil s covering, with 16 classes. Divided into coverage and disturbed natural covering. Using the 300 meters spatial limits of the Environmental Protection Strip, according to the State Law. The survey highlighted a higher percentage of classes disturbed, indicating man s interference in the balance of that system, as well as the lack of environmental actions. Leading to the degradation of riparian areas, and lack of conservation of water resources. Finally, it was considered that the strips of environmental protection are not effective as the preservation and territorial ordination

Um algoritmo enumerativo baseado em ordenamento parcial para resolução do problema de minimização de trocas de ferramentas

No problema de minimização de troca de ferramentas procura-se por uma sequência para processar um conjunto de tarefas de modo que o número requerido de trocas de ferramentas seja o menor possível. Neste trabalho propõe-se um algoritmo para resolver este problema baseado em um ordenamento parcial das tarefas. Uma sequência ótima é obtida expandindo-se as sequências parciais enumeradas. Testes computacionais são apresentados.