Autonomia privada e licen��a para mentir : uma investiga����o sobre a possibilidade de limita����o contratual da responsabilidade por dolo

A presente disserta����o de mestrado tem por objetivo investigar se as partes de neg��cios jur��dicos empresariais celebrados �� luz do ordenamento jur��dico brasileiro podem evocar a autonomia privada para, por meio da inser����o no contrato de mecanismos importados da common law ��� como as declara����es e garantias, as regras de indeniza����o e limita����o de responsabilidades (frequentemente acompanhadas de disposi����o de rem��dio exclusivo), as cl��usulas de entendimento integral e os dispositivos de disclaimer of reliance ���, estabelecer limites �� responsabilidade extracontratual por dolo prevista no C��digo Civil e, assim, criar contratualmente verdadeira licen��a para mentir. Para tanto, dada a aus��ncia de jurisprud��ncia brasileira a esse respeito, parte-se da an��lise do caso Abry Partners V, L.P. v. F&W Acquisition LLC, C.A. No. 1756-N, examinado pela Court of Chancery do estado norte-americano de Delaware em 2006. Busca-se, ent��o, compreender ��� com base na decis��o proferida em tal caso e na doutrina estrangeira que sobre ela se debru��ou ��� os efeitos pretendidos e obtidos, no ��mbito da common law, pela inser����o das cl��usulas e mecanismos mencionados acima e, posteriormente, segue-se ��� de acordo com os princ��pios que regem a forma����o, a conclus��o e a intepreta����o dos contratos comerciais no Brasil (tal como a boa-f�� objetiva) ��� rumo ao exame de como o Poder Judiciário brasileiro tender�� a conduzir a acomoda����o e/ou adapta����o de tais mecanismos e cl��usulas ao direito p��trio.

IV Relat��rio Supremo em N��meros: o Supremo e o Minist��rio P��blico

O IV Relat��rio Supremo em N��meros aborda a rela����o entre o Minist��rio P��blico e o Supremo Tribunal Federal, analisando as atua����es do MP como autor em a����es origin��rias, em a����es constitucionais e em sede de recurso na mais alta corte do pa��s. As an��lises incluir��o processos nos quais s��o partes a procuradoria-Geral da Rep��blica (PGR), os ��rg��os do Minist��rio P��blico Federal (MPF) e do Minist��rio P��blico Estadual (MPE).

Supremo interesse: protagonismo pol��tico-regulat��rio e a evolu����o institucional do processo de sele����o dos ministros do STF

Partindo da constata����o de que o Brasil acompanha hoje um fen��meno global de protagonismo das cortes supremas nas sociedades complexas contempor��neas, notadamente na cria����o de pol��ticas-p��blicas e regula����o, o estudo procura mapear a evolu����o ��� e progressiva democratiza����o ��� de uma estrutura de freios e contrapesos prevista na Constitui����o da Rep��blica Federativa do Brasil de 1988 (���Constitui����o���), qual seja, o processo de sele����o dos ministros do Supremo Tribunal Federal. Ao longo do texto �� analisada a arquitetura institucional e constitucional do processo de indica����o e aprova����o de novos ministros, bem como exemplificadas mudan��as no perfil dos atores pol��ticos, no plexo de compet��ncias das institui����es envolvidas e no contexto social, pol��tico, econ��mico e cultural que for��aram a transforma����o pr��tica do modelo de sele����o institucional, sem altera����o, no entanto, da formata����o originalmente prevista desde o S��culo XIX. Mapeando a origem e evolu����o da f��rmula constitucional de colabora����o entre o Poder Executivo e o Poder Legislativo para a escolha dos membros da c��pula do Poder Judiciário, o estudo identifica a origem do modelo brasileiro na inspira����o da experi��ncia norte-americana, descrevendo esta e os paralelos poss��veis com aquele. A partir do marco central da Constitui����o, o trabalho procura demonstrar uma progressiva mobiliza����o de atores pol��ticos e sociais em rela����o ao processo de escolha, notadamente em rela����o ao momento em que os indicados para o Supremo Tribunal Federal s��o sabatinados pela Comiss��o de Constitui����o, Justi��a e Cidadania do Senado Federal. Finalmente, s��o analisadas concretamente as sabatinas e algumas das suas principais discuss��es, buscando extrair li����es que sirvam de norte colaborativo para a evolu����o da forma de sele����o dos ministros do Supremo Tribunal Federal, inclusive como instrumento de controle pr��vio de seus membros, futuros elaboradores de pol��ticas-p��blicas.

O debate sobre desigualdade de g��nero no discurso de adjudica����o

O presente trabalho pretende contribuir com a literatura sobre legitimidade do poder judiciário e argumenta����o jur��dica. O estudo se vale de pesquisa emp��rica baseada em amostra de casos que tratam de quest��es relacionadas �� discrimina����o de g��nero.

Relat��rio ICJBrasil - 2�� semestre / 2015

Relat��rio com os dados da pesquisa ��ndice de Confian��a na Justi��a (ICJBrasil) referente ao 2�� semestre de 2015.

A a����o civil p��blica como meio de concretiza����o do direito �� sa��de na Constitui����o de 1988

The work presented here is about aspects of the constitutional extension in which is the public civil action with the objective of verifying its aptitute in tutelaging subjective situations derived from fundamental rights, especially right to health assistance. Thus, it offers a clear analysis of the practical functioning of most aspects of the public civil action (lawsuit), with philosophical foundation and necessary doctrinaire to your comphehension. How it once was (history), how it could be (reform suggestion), how it is (current interpretation of the law) and how it should be (critic analysis of the microsystem of collective tutelaging of rights, its perspectives, as well as the efficacy of the public cilvil action about accomplishment of the right to health as supraindividual right). The objective is to analyse the main version of the theme (for instance: the impacts caused to the dissociation of the Procurations theory), so that it can be extracted the philosophy and the general theory, of the public civil action and collective tutelaging in general, pragmatically applicable to study purposes. With this theorical fountain, the reader will be in a more solid position, not only being able to understand the subtilities of the public civil action, but mainly being able to recognize its faults and present solid reform proposals and improvement. It is know that the Juridical Power (Procuration) does not allow any more inactivity about negating accession to health in its collective dimension (lato sensu: spread, collective stricto sensu and homogeneous individuals), being imputed to it novel usage that consolidates in the assumption of the role instrument set aside to be used by all with organized instancy of solution to collective conflicts in large sense. This happens, overall, because of the current justice politization, understood as juridical activism, connected to the struggle between the groups defending their interests and the acceptance of the constitution about solidifying the public politics of quality health

A legitimidade da jurisdi����o de primeiro grau na concretiza����o dos direitos fundamentais: proposta de um novo modelo jur��dico-administrativo para o segundo grau de jurisdi����o

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.

A concretiza����o do princ��pio da igualdade em mat��ria tribut��ria por meio de senten��as aditivas

This work aims to study the additive decisions, a type of juridical interpretation developed in foreign legal systems and which are known in Italy as adittive sentences. Thefore, this dissertation is based on theorical studies developed around the subject in Italy and Brazil. Considering the fact that the fundamental rights face a problem of implementation, being decreased its normative force when there are legislative partial omissions lacking constitutional justification creating privileges to certain individuals or social/economical groups over others, the method of additive interpretation according to the Constitution can be used in order to realize the principle of equality. In tax matters the subject is even more relevant in the way that it represents an important role in the economy. Partial legislative omissions can generate inequalities, favoring certain taxpayers in relation to others in similar legal situation. In these cases the privilege may have a negative impact on economic order restricting values related to the basis of market competition. On those occasions, Brazilian Judges and Courts must exercise their constitutional jurisdiction in order to expand the effects of the legislative omissions, based on the principle of equality by extending the standard to equal tax situations in order to maintain neutrality in taxation

Repercuss��o geral e s��mula 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 interven����o estatal no dom��nio econ��mico privado atrav��s da nova lei de recupera����o de empresas e fal��ncias (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 �� justi��a enquanto direito fundamental: efetiva����o pela defensoria p��blica

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 valoriza����o do professor na Constitui����o 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 n�� 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 n�� 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 �� sa��de e a pol��tica nacional de aten����o oncol��gica: uma an��lise a partir da crescente judicializa����o dos medicamentos antineopl��sicos

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 Pol��tica Nacional de Aten����o Oncol��gica 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

A constitucionaliza����o da solu����o pac��fica de conflitos na ordem jur��dica 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