Do controle de constitucionalidade dos atos jurisdicionais transitados em julgado

The following study aims to verify in which hypothesis res judicata, when it comes of an unconstitutional decision, shall not prevail over Constitution. It displayed the characteristics of formal and material constitutional systems. It debated the concepts of existence, validity and efficacy of juridical rules and acts. It dissertated about the idea of Constitution s superiority and about the birth of the judicial review of constitutionality. It focused some contemporary models of this judicial review and its historical evolution in Brazil, showing its effects towards the current Constitution. It sustained that the decision given by Supremo Tribunal Federal during abstract control of rules must bind even legislative bodies, preventing them to produce the same rules previously declared unconstitutional. It held up that all parts of the decision of Supremo Tribunal Federal oblige, even the juridical arguments employed, in both diffused and concentrated reviews. It showed that, despite these models of review live together in Brazil, our constitutional system preferred the concentrated one, considering one only court over the other constitutional organs. It discussed about res judicata with the purpose of clarifying its juridical nature, its objective and subjective limits and its regulation in collective demands. It explained that the material res judicata is an effect of a decision which cannot be reviewed, which makes the law s will free of discussion, binding the contendants and avoiding that other courts, judging future demands about the same object, may decide differently. It showed how the regulation of res judicata in collective demands, in respect oh their subjective limits, is useful to demonstrate that it is not the material law who must adapt itself to res judicata as traditionally thought, but res judicata, as a warranty of juridical certainty and security, who must be shaped from the debated rule. It presented to view the main doctrinal conceptions about res judicata s review in the hypothesis of unconstitutional judgement. It concluded that the decisions forged by unconstitutional rules or interpretations reputed not compatible to the Constitution by Supremo Tribunal Federal, in spite of it can make res judicata, may be reviewed beyond the term to file a recissory claim, since while the debated law is still valid, no matter if its decision was before or after the res judicata. At the end, it asserted that, when it is not legally authorized, the judicial review of res judicata is not admissible, after the term to file a recissory claim, under the argument that there was no direct violation to the constitutional principle or rule

Efetivação da garantia de defesa no estado constitucional de direito: colisão entre o poder punitivo e garantia de defesa

The domination of the violence for the Rule of law awakened a tension between the practice of the punitive power and the right to counsel. However, throughout the recent history of the Criminal law, this shock of forces has been determined for the punitive power. In this perspective, the present work intends to submit the guarantee of defense to a critical judgment, in search to conciliate its content to the Constitutional State of Right. For in such a way, it will be necessary to recognize the disequilibrium of the situation, but without considering the superiority of any of these elements. The State in such a way must fulfill the function to punish the culprits as to acquit the innocents. Despite the law is far from obtaining a harmonious speech, it is necessary that the defense guarantee coexists the punitive power as part of an only public interest, which is, to make criminal justice. In such a way, the existence of a sustainable balance between the punitive power and the guarantee of defense depend on the minimum interference of Criminal law and, also, of the judicial position in the concrete case. The present work faces, therefore, the moment of crisis of the Criminal law, consolidated with the advent of a new way of thinking according to the procedural guarantees, that will demand the overcoming of the old concepts. The Constitutional State of Right not only constitutes an efectiveness of the regime of the right to counsel, but in a similar way it searchs to accomplish the right of action and criminal justice as a whole. Knowing that the philosophy of the language raises doubts on the certainty, the truth and the judgement, it is imposed to understand that the defense guarantee is no more about a simple idea, but, in the crooked ways of the communication, we intend to find what the judge s function is when he faces this new reality

Participação administrativa processual na administração pública dialógica

The dissertation, which is based on the deductive method, by using general concepts of the theory of the administrative participation in the administrative process, addresses the importance of strengthening administrative and procedural activities of citizen involvement in public administration for the administrative consolidation of democracy in Brazil. The emergence of Administrative Law has particular importance for the understanding of its institutions and, of course, for the different fields of public administration. The authoritarian profile of this area of law still exists as a clear recollection of their origin, mainly based on a relationship of superiority of the state over the individuals. Indeed, does not even modern constitutionalism could print a true democracy administrative, since the constitutions were not properly observed by the Government. Furthermore, only the process of constitutionalization of administrative law legal relations took a more democratic profile. That is, the creation of an environment of dialogue with civil society is a recent achievement of the Brazilian government. As the administrative process involves dilemmas and solutions of state action, because it is revealed the expression government, the strengthening of institutions and principles related to the administrative procedure is important for role in making a more participatory relationship between state and citizen. Thus, administrative participation can be considered not only a mechanism of control and legitimacy of state action, but also for improvement and reduction of administrative costs, as a requirement of the principle of efficiency. The objective of this investigation is to assert as the administrative legal relation, the administrative legality, the administrative jurisdiction, the processuality administrative, the consensuality administrative and administrative justice, together with administrative participation, can contribute to a more democratic role of the Public Administration and, therefore, more dialogic and consolidator of the fundamental rights of citizens. Therefore, we highlight the importance of the administrative process and administrative participation as mechanisms for improving public policy and thus as a means of reducing administrative costs mediate the state

A objetivação do controle concreto de constitucionalidade nas decisões do Supremo Tribunal Federal

The independence of the United States and the revolutions that emerged in Europe in the eighteenth century led to the birth of the written constitution, with a mission to limit the power of the State and to ensure fundamental rights to citizens. Thus, the Constitution has become the norm and ultimate founding of the State. Because of this superiority felt the need to protect her, emerging from that constitutional jurisdiction, taking control of constitutionality of provisions his main instrument. In Brazil, the constitutionality control began with the Constitution of 1891, when "imported" the American model, which is named after incidental diffuse model of judicial review. Indeed, allowed that any judge or court could declare the unconstitutionality of the law or normative act in a concrete case. However, the Brazilian Constituent did not bring the U.S. Institute of stare decisis, by which the precedents of higher courts eventually link the below. Because of this lack, each tribunal Brazilian freely decide about the constitutionality of a rule, so that the decision took effect only between the parties to the dispute. This prompted the emergence of conflicting decisions between judicantes organs, which ultimately undermine legal certainty and the image of the judiciary. As a solution to the problem, was incorporated from the 1934 Constitution to rule that the Senate would suspend the law declared unconstitutional by the Supreme Court. With the introduction of abstract control of constitutionality, since 1965, the Supreme Court went on to also have the power to declare the invalidity of the provision unconstitutional, effectively against all without the need for the participation of the Senate. However, it remained the view that in case the Supreme Court declared the unconstitutionality of the fuzzy control law by the Senate would continue with the competence to suspend the law unconstitutional, thus the decision of the Praetorium Exalted restricted parties. The 1988 Constitution strengthened the abstract control expanding legitimized the Declaratory Action of Unconstitutionality and creating new mechanisms of abstract control. Adding to this, the Constitutional Amendment. No. 45/2004 brought the requirement of general repercussion and created the Office of Binding Precedent, both to be applied by the Supreme Court judgments in individual cases, thus causing an approximation between the control abstract and concrete constitutional. Saw themselves so that the Supreme Court, to be the guardian of the Constitution, its action should be directed to the trial of issues of public interest. In this new reality, it becomes more necessary the participation of the Senate to the law declared unconstitutional in fuzzy control by the Supreme Court can reach everyone, because such an interpretation has become obsolete. So, to adapt it to this reality, such a rule must be read in the sense that the Senate give publicity to the law declared unconstitutional by the Supreme Court, since mutated constitutional

Saída compulsória do estrangeiro do território nacional à luz dos direitos humanos: análise de casos

This paper aims to review traditional concepts inherent to the general theory of the state and human rights, relating to the legal situation of foreign, understood as the subject of rights, especially when the is case of compulsory legal imposition of exit from national territory. After the serious violations during the Second World War and the importance acquired by the International Law of Human Rights, values as dignity, justice and equality are enshrined in the legal system and its respect required beyond the boundaries of any country. The creation of an international community, which is governed by rules that its members are subordinated, without distinction, as well as state - based on volunteerism, become inspired by one principled nature of these new concepts required of Global Society, as well as the adoption, influenced by neoconstitutionalism, to the model of State Constitutional rule of law, are opposed to the idea of state sovereignty connected to a superiority, absolute and unlimited power which recognizes no other above it, not even the basic principles or axioms that must govern the relationships internally. So looks for a concept of state that includes all the requirements of a democratic society, that have the people as the power holder, understanding that state element has undergone a relativization, because had to adapt to the contemporary values applicable to the individual, inserting in its concept, the indispensable obligation to protect the inalienable rights of citizens, regardless of with whom he have legal and political bond of nationality. It happens that, to consecrate these privileges to individuals, which, because they contain reference to values with supranational characteristics, are very abstract and are in constant collision course with internal rules, making it difficult to reconcile, it will use hermeneutics of human rights, due mainly to international courts, correlated with constitutional exegesis, in particular, legal principiologia, using, among others, the principles of reasonableness and proportionality, the systematic interpretation of the Constitution and international legal standards. Thus, it seek to enshrine the common foundation of all law , the link between the systems, namely, the dignity of human beings. Finally, it will see if Brazilian jurisdiction, through case studies, is tuned in line with these new paradigms, and in line with the International Bill of Human Rights, the Federal Constitution, the values and principles she hired

Tramas da (ir)racionalidade contemporânea para a composição do mito-tecno-lógico

The plot myth-techno-logic, contemporary, was developed starting from the dualism myth-reason. In this study, we deepened the alluded dualism taking as reference the historical contexts of the Renaissance and of the Enlightenment, emphasizing the discussion of the economical rationalization as conductive thread of the western development, in which we identified the game of the rational and of the irrational, for assure the superiority of the reason. In the context of that game, we analyzed the implications of the modernization, for the education, in function of the instrumental rationality, responsible for the environment of adaptation of the technological instruments to the scenery of the contemporary modernization. The new context is constituted by points of union and of ruptures among the technique, the science and the myth. Through our analysis, we noticed that the basic needs for the contemporary society were linked to the changes in the production means, for which the machine determine the rhythm of the work and the quality of the product. However, the changes in the productive processes promoted the appearance of the commercial marks that, as we see it, they represented the synthesis of the perfect harmony of the myth, of the technique, of the science and of the technology, in the conduction of the economical rationalization to the contemporary modernization. Thus, the contemporary modernization it arrives us for the economical rationalization, developed with the support of the technician-scientific knowledge and communicated by the articulations of the myth-techno-logical

O dia mais feliz da minha vida: a entrada na universidade segundo os alunos recém-ingressos no curso de Pedagogia da UFRN(2004.1)

The present work, based on the methodological principles of the Comprehensive Discourse Analysis, aimed, through the speech of twelve newly arrived students at the Pedagogy course of the Federal University of Rio Grande do Norte, to understand the moment students start university. It also aimed to analyze the relationship between the schools they were coming from and university entrance as well as the relationship between university and their new students. In the first part of the work, which focused on school knowledge, a comprehensive listening of the speeches of the students led primarily to a distinction, established by the students, between public and private schools, a distinction especially based on the view of superiority of private schools against public ones. The abovementioned interpretation is found in the discussion of the structural duality of Brazilian education which, historically, offers different pedagogical appliances among students of more priviledged social classes and those who come from lower levels of society. The overcome of this duality, aspired by the Brazilian Constitution of 1988, was stopped by the advent of a new economic model neoliberalism, which reinforced the differences between public and private when it prioritized the market on the economic, political and social relations, including educational projects. Impoverishment of public institutions and pauperization of the work of professors affected also the relationship between teachers and studens at the current institution. This is how the teacher becomes the greatest villain at the public management system. All of these references concerning differences in the quality of teaching at public and private schools, expressed by the students interviewed, however, were centered in the preparation for the entrance exam, called vestibular, thus showing a view that the relationship between the student and the school he came from is of a propedeutic kind and even so, reduced to a preparation for an entrance exam. In the second part of the work, which analyzed the relationship between newly arrived students and their university, it was noticed that the latter represents a whole new world. This world is seen as the change at the student´s social statute for now he is grown, takes more responsibilities and is socially respected. This change of attitude established by society and the discovery of a new world which requires more independence from the students, creates in them feelings of pride and fear and they feel insecure when it comes to making decision in the campus because now their decisions deliver a greater load of responsibility. This is when students understand they need to develop autonomy, which is seen, in this work, as the capacity to make conscious decisions. Nevertheless students expressed an understanding of autonomy as something that comes as a gift for those who enter university and not as a process that is constructed from social experiences. For these students, the need to be autonomous refers to the relationships with their teachers and the search for information. This search, however, is also related, according to interviews, to public school financial cuts, which penalize university, and to the lack of employers

Crescimento e acúmulo de macronutrientes em chicória coberta e não coberta com polipropileno

O experimento foi realizado com o objetivo de comparar o crescimento e acúmulo de macronutrientes pela chicória coberta e não coberta com tecido de polipropileno (TP), branco de 20 g m-2. O delineamento experimental adotado foi de blocos ao acaso em parcelas subdivididas, com 4 repetições. Na parcela, os quatro tratamentos constituíram-se de duas cultivares de chicória crespa (Chicória Crespa e AF-218) em dois sistemas de cultivo (com e sem tecido de polipropileno) e nas subparcelas as épocas de avaliação da chicória, correspondentes às idades da planta (7; 14; 21; 28; 35 e 42 dias após o transplante). A semeadura foi realizada em 02/06/03 e o transplante em 27/06/03. Foi avaliada semanalmente a altura da parte aérea, número de folhas, diâmetro das plantas, matéria fresca e seca da parte aérea e o acúmulo de macronutrientes. Exceto para o diâmetro da parte aérea, observou-se superioridade das demais características nas plantas que receberam a cobertura com TP. A cobertura com TP por todo o período pós-transplante proporcionou maior acúmulo de P, K, Mg e S. Plantas da 'AF-218' cobertas com TP por todo período pós-transplante, e que apresentaram maior matéria fresca da parte aérea, acumularam 836; 515; 205; 144; 90 e 65 mg planta-1 de N, K, Ca, Mg, S e P, respectivamente.

Predição de ganhos genéticos em melhoramento florestal

Foram avaliados os ganhos totais preditos por diferentes critérios de seleção, em seis características de crescimento em famílias de meios-irmãos de Eucalyptus camaldulensis. A situação simulada consistiu na seleção de 25% das 44 famílias estudadas, e de 17% das plantas dentro dessas famílias, proporcionando, assim, uma seleção de 4,25% dos indivíduos constantes do ensaio. Os critérios de seleção empregados foram: seleção direta e indireta; índice clássico de Smith & Hazel, com quatro pesos econômicos, e índice de Pesek & Baker, em três situações. Os critérios de seleção utilizados mostraram-se semelhantes entre si, com ligeira superioridade do índice clássico quando se estabeleceu como vetor de pesos econômicos o coeficiente de variação genética associado a cada uma das características analisadas.

Modelo de covariância bayesiana para seleção de protfólios de investimentos

The portfolio theory is a field of study devoted to investigate the decision-making by investors of resources. The purpose of this process is to reduce risk through diversification and thus guarantee a return. Nevertheless, the classical Mean-Variance has been criticized regarding its parameters and it is observed that the use of variance and covariance has sensitivity to the market and parameter estimation. In order to reduce the estimation errors, the Bayesian models have more flexibility in modeling, capable of insert quantitative and qualitative parameters about the behavior of the market as a way of reducing errors. Observing this, the present study aimed to formulate a new matrix model using Bayesian inference as a way to replace the covariance in the MV model, called MCB - Covariance Bayesian model. To evaluate the model, some hypotheses were analyzed using the method ex post facto and sensitivity analysis. The benchmarks used as reference were: (1) the classical Mean Variance, (2) the Bovespa index's market, and (3) in addition 94 investment funds. The returns earned during the period May 2002 to December 2009 demonstrated the superiority of MCB in relation to the classical model MV and the Bovespa Index, but taking a little more diversifiable risk that the MV. The robust analysis of the model, considering the time horizon, found returns near the Bovespa index, taking less risk than the market. Finally, in relation to the index of Mao, the model showed satisfactory, return and risk, especially in longer maturities. Some considerations were made, as well as suggestions for further work

A comparison of statistical methods for genomic selection in a mice population

Fundação de Amparo à Pesquisa do Estado de São Paulo (FAPESP)

Viabilidade econômica de aquisição de um silo-secador para pequenas áreas de produção

O objetivo deste trabalho foi avaliar, por meio de simulação econômica, a viabilidade de aquisição de um silo-secador, para pequenas propriedades rurais, tendo como referências as opções de terceirizar o processo de secagem/armazenagem ou a comercialização do milho úmido. em virtude da alta diversificação encontrada nas pequenas propriedades rurais, a simulação foi realizada considerando-se diferentes tamanhos de áreas exploradas com milho (10; 20; 30 e 40 ha), níveis de produtividade (3.900; 4.500 e 5.100 kg ha-1) e preços por saca de milho (R$ 13,03; R$ 19,69 e R$ 34,29), no Estado de São Paulo. Comparando as rentabilidades obtidas, notou-se a superioridade da receita líquida na aquisição do silo secador nas áreas de produção de 20 ha com produtividade de 4.500 e 5.100 kg ha-1, 30 ha e 40 ha nos vários níveis de produtividade (3.900; 4.500 e 5.100 kg ha-1) sempre que o preço de mercado da saca de milho cobriu os custos anuais do sistema. A terceirização da secagem/armazenagem apresentou-se como a melhor alternativa nas áreas de 10 ha (todas as produtividades) e 20 ha (produtividade de 3.900 kg ha-1). A comercialização do produto úmido nunca se constituiu na opção mais rentável.

Análise das propriedades termofísicas, mecânicas e geométricas de telhas cerâmicas queimadas em forno caieira e forno abóbada

In the industry of ceramic in Rio G. do Norte, tile stands out as the most manufactured product by this industry, being the intermittent kiln abóbada and caieira the principal type of kiln used in burning. There was a need to make a study of the influence exerted by the type of kiln in which tiles are burnt in their thermo physical properties. The analysis started with 24 raw samples of tile, which was split in two groups of 12 samples and burnt in Abóbada and Caieira kiln. Besides that, it was made study of the tax of heat transfer to the environment (for each kiln). After having been burnt the samples were taken for laboratory analysis. The properties verified were impermeability, determination of dry mass, absorption of water, the load of bending rupture and its geometric characteristics, the tests were conducted following the currents standards. The tests were carried out according to the ABNT - NBR 15310. The calculation of the rate of heat transfer showed that the abóbada kiln is more efficient than the Caieira, however the results of tests on the samples revealed no superiority of one over another sample. So the furnace had no influence on the performance of the ceramic tiles

Produção e heterose em cruzamentos entre linhagens de pepino do grupo caipira

Fundação de Amparo à Pesquisa do Estado de São Paulo (FAPESP)

Ventilação mecânica não-invasiva no pós-operatório de cirurgia cardíaca: atualização da literatura

Este estudo objetivou atualizar os conhecimentos em relação à utilização da ventilação mecânica não-invasiva (VMNI) no pós-operatório de cirurgia cardíaca e identificar se há indícios da superioridade de uma forma de modalidade de VMNI em relação à outra. Foi realizada revisão da literatura entre 2006 a 2011, a partir das bases de dados PubMed, SciELO e Lilacs, utilizando os descritores respiração artificial, pressão positiva contínua nas vias aéreas, ventilação com pressão positiva intermitente e cirurgia cardíaca, e seus correspondentes na língua inglesa, os quais foram pesquisados em cruzamentos. A partir dos critérios adotados, foram selecionados nove artigos, dos quais seis demonstraram aplicações de VMNI, por meio de modalidades como pressão positiva contínua nas vias aéreas, pressão positiva com dois níveis pressóricos e respiração com pressão positiva intermitente, no pós-operatório de cirurgia cardíaca, e, três realizaram comparações entre as diferentes modalidades. As modalidades de VMNI descritas na literatura foram utilizadas com resultados satisfatórios. Estudos que comparam diferentes modalidades são escassos, contudo alguns demonstraram superioridade de uma modalidade de VMNI, como é o caso da respiração com pressão positiva intermitente na reversão da hipoxemia e da pressão positiva com dois níveis pressóricos na melhora da oxigenação, da frequência respiratória e frequência cardíaca desses pacientes, em comparação a outras modalidades.