Antitruste: sanção de desinvestimentos em ativos: um estudo de caso no processo administrativo no 08012.11142/2006-79

O presente trabalho é um estudo de caso, tendo como objetivo principal avaliar a sanção de desinvestimentos de ativos, isto é, a pena de cisão de sociedade, transferência de controle societário e/ou venda de ativos, conforme disposto no art. 38, inciso V, da Lei no 12.529/2011 (Lei de Defesa da Concorrência). Para tanto, parte-se da exposição da decisão proferida pelo Tribunal do Conselho Administrativo de Defesa Econômica (Cade) no Processo Administrativo no 08012.011142/2006-79, denominado Cartel de Cimento e Concreto. Tal decisão condenou as empresas fabricantes de cimento e prestadoras de serviços de concretagem a desinvestirem ativos próprios, frutos de aquisição ou de crescimento orgânico. É importante destacar que essa decisão sofreu relevante modificação ao longo do julgamento, decorrente da alteração de entendimento pelos conselheiros do Cade. Em um segundo momento, o trabalho procura propiciar ao leitor uma visão ampla (prós e contras) dos tipos de remédios ou sanções existentes e aplicáveis aos casos em que se determina a medida de desinvestimento, por meio da seleção de alguns casos internacionais e nacionais, escolhidos a partir de casos amplamente tratados pela doutrina, e também citados no julgamento do Processo Administrativo no 08012.011142/2006-79. A seguir, aborda-se a questão do desinvestimento específico ocorrido no Processo Administrativo no 08012.011142/2006-79, buscando-se evidenciar, a partir da análise do aparente choque dos votos do conselheiro-relator e do conselheiro-revisor, que as bases utilizadas para determinação dos desinvestimentos carecem de parâmetros concretos para sua aplicação. Ao final do estudo acerca do desinvestimento, delineia-se uma proposição para solução jurídica. Ao final, conclui-se que a aplicação de medidas de desinvestimentos como penalização por participação em cartel não é escolha fácil, e sua utilização tampouco é pacífica, devendo-se levar em conta alguns aspectos relevantes para que possa ser utilizada de maneira legítima e garantir a sua melhor eficácia.

A qualificadora “no melhor conhecimento” em contratos de compra e venda de participação societária

As operações de compra e venda de participação societária seguem no Brasil um modelo importado do direito estrangeiro. Dentre diversos institutos importados, existem as cláusulas de declarações e garantias e suas qualificadoras. O objetivo do presente trabalho é examinar a validade da qualificadora “no melhor conhecimento” no ordenamento jurídico brasileiro e sua eficácia dentro dos limites impostos por esse ordenamento. Busca-se, para tanto, analisar o conceito da qualificadora em seu sistema originário, a Common Law, e posteriormente trazer a discussão para o ambiente jurídico do ordenamento brasileiro, propiciando a conclusão que a validade da inserção da cláusula decorre do princípio da autonomia privada, mas está limitada pelos valores trazidos pelo princípio da boa-fé objetiva e seus deveres relacionados. Uma vez verificada a validade do instituto jurídico no ordenamento brasileiro, sua eficácia está relacionada à alocação de responsabilidade entre partes sobre o conhecimento e as consequências dessa alocação.

Os filhos evangélicos do novo caldeirão do diabo: a conversão religiosa na penitenciária de alcaçuz

The theme of the research is inserted at a field of intersection between the Sociology of Religion and Sociology of Violence, having as the general objective study the sociological meaning of the conversion of prisoners that lives at the biggest prison (Prison of Alcaçuz) of Rio Grande do Norte to the evangelical churches. The research is justified, because Brazil shelter the fourth greater arrested population arrested of the world, with projections indicating that it can turn the greatest in 2034. Besides, this study about religious conversion of prisoners to the Social Sciences is too important, because is a theme little developed in Brazil and deserves attention, one time that as the arrested people as the evangelicals are in expansion in our country. Starting from the precedent observations, we guide ourselves by the following problematic of research: the religious practice in Alcaçuz presents a mere instrumental perspective, where the actions of prisoners converted was on purpose oriented to conquest material or symbolic privileges; or purely religious, where seek a moral renovation? To develop the work, the scientific methodology adopted was exploratory and explanatory, using the Goffman´s theory about total institutions and presentation of self, and Blumer´s doctrine relating to Symbolic Interacionism and the Story life method, besides considerations about evangelical religion. Having this theoretical basis, was accomplished the Field research, when were made interviews and applied questionnaires to 11 Jailer Agents, 31 prisoners, Director and Vice-Dictor (in November, 2011), the coordinator of social projects of the prison and the coordinator of evangelization at the prisons in Rio Grande do Norte. As results, it was seeing in Alcaçuz that the prisoners can be separated in two groups: the one of Pavilions and other one of the Medical Section. The Pavilions are branded for managerial and structural problems, where are found idle prisoners in collective cells and with a historical of escaping attempts, mutinies and murders. The Medical Section has some individual cells or destined for two people, besides few collective also, and the prisoners work and have a more disciplined behavior, there isn t escapes or rebellions and that, for these reasons end for have more confidence from the Administration. About the presence of evangelical prisoners, most are at Medical Section, where exist a specific place to the cults (what doesn t at Pavilions). At the end, the conclusion is that the prisoner that says himself evangelical in Alcaçuz, although can be seeing with distrust about your real conversion, he gets win a trust vote and until the opposite being demonstrated in other words, that he is not hiding himself behind the bible to divert the vigilance of Direction and practice disciplinary faults without make any suspicions, is treated with more respect and has more opportunities live at Medical Section; have work, that most of times is paid and guarantee the homologation of your payment of penalty with work, besides other benefits, diminishing his time in jail

A Eficácia dos direitos fundamentais nos contratos civis e de consumo: uma teoria contratual baseada na colisão dos direitos ou bens constitucionalmente protegidos

The apparent virtuosity that if could wait of the globalization and the neoliberalism has given signals of deterioration in the contractual relations, especially in contracts of mass consumption, generating innumerable offensive situations to the basic rights and the goods constitutionally protected of the contractors. In the world of today, still that it does not reveal any desire, the individual practically is compelled to contract, for force of necessities and customs completely imposed, mainly in face of the essentiality of the services or agreed to goods. Ahead of as much and unexpected changes in the civil liames and of consumption, dictated for the globalization, it comes to surface the reflection if the private law e, more specifically, the civil law, meet prepared adequately to deal with these new parameters of the economy. The present dissertation has the intention to investigate if the globalization and the consequent neoliberalism, in this beginning of third millennium, will imply to revive of the principles and the basics paradigms of the contracts that consolidated and had kept, for more than two centuries, the liberal State. One notices that the study of this phenomenon it gains importance to the measure where if it aggravates the decline of the social State (Welfare State), with the embrittlement and the loss of the autonomy of the state authority, over all in countries of delayed modernity, as it is the case of Brazil, that presents deep deficiencies to give or to promote, with a minimum of quality and efficiency, essential considered public services to the collective and that if they find consecrated in the Federal Constitution, as basic rights or as goods constitutionally protecting, the example of the health, the education, the housing, the security, the providence, the insurance, the protection the maternity, the infancy and of aged and deficient. To the end, the incidence of constant basic rights of the man in the Constitution is concluded that, in the process of interpretation of the right contractual conflicts that have as object rights or goods constitutionally proteges, in the universe of the globalized perhaps economy and of the neoliberalismo, it consists in one of the few ways - unless the only one - that still they remain to over all deal with more adequately the contractual relations, exactly that if considers the presence of clauses generalities in the scope of the legislation infraconstitutional civil and of consumption, front the private detainers of social-economic power. To be able that it matters necessarily in disequilibrium between the parts, whose realignment depends on the effect and the graduation that if it intends to confer to the basic right in game in the private relation. The Constitution, when allowing the entailing of the basic rights in the privates relations, would be assuming contours of a statute basic of all the collective, giving protection to the man against the power, if public or independently private

Acordos internacionais sobre a produção compartilhada de recursos naturais: a unitização interestatal na área do petróleo e gás sob o enfoque constitucional brasileiro

The apportionment of natural resources between sovereign States is a subject that relates many aspects of International law, as long as Constitutional Law, at the execution and application phases of international treaties that regulates the exploration of common goods. In this sense, because of their natural characteristics that creates an environment of constant migration and fixation in transboundary regions, terrestrial or maritime, the petroleum and the natural gas bound a complex juridical apparatus that can control the sovereign rights involved. This research is aim at accomplishing a study concerning the international agreements that enable the non-unilateral action, specifically the unitization treaties between sovereign States, as a manner to resolve situations related to the individualization of oil and/or gas reservoirs that go across their national borders. These agreements will be analyzed considering the international public law sources theory, bearing in mind yet the already existed experiences in this sense, not disregarding the way that this fact could affect Brazil. It will begin with an historical incursion over the unitization institute, covering its main characteristics and its formation and execution procedures, and finally it will address the Brazilian legal system and the comparative law threats the institute. The clauses of these relevant agreements will be analyzed in details, concerning its particularities and its contents. Because these agreements are international obligatory rules of law, it is indispensable that they are considered under the auspices of the international law system, focusing their nature and the subjects of international law and establishing them as sources of the international law, analyzing them, then, as international rules and the applicable law to these juridical relations, the conventional established, the consolidated international custom and the applicable International Law principles, appearing the State s responsibility as an important subject for the verification of the acts lawful practiced by States. The analysis of the apportionment of these natural resources ends with the individualization of possible exploitable marine oil fields located between the exclusive economic zone and the continental platform ends and the region administrated by the International Seabed Authority. At last, the Brazilian constitutional system appears as the mechanism of integration, application and execution of the international unitization agreements in Brazil, detaching the format and the proceedings that the international treaties take to acquire validity at the national legal system, passing through the treaties interpretation and the applicable constitutional principles, coming to its application in Brazil, considering the existing constitutional peculiarities and the role played by the National Agency of Petroleum, Natural Gas and bio-fuel ANP

Proteção da relação de emprego sob o prisma da dignidade da pessoa humana

This work aims to show that the protection of the employment relation is one of the determining factors to respect the principle of the human dignity. The goal is initially to show the devaluation of work from antiquity to the early twentieth century, when the constitutions began to standardize protective devices. This way, the consecration of the social labor rights in the Constitution of 1988 represents the culmination of the historical achievements. This work demonstrates that such rights can not be reduced or suppressed by political conveniences, once these rights are included in the list of immutable clauses. It is displayed that to achieve the fundamental right to work is not well advised to encourage the creation of jobs that maculates the worker s dignity. The outsourced work is, therefore, a classic example of the advancement of precarious forms of contemporary labor. It is inferred that the presence of various forms of harassment results in a degradation of working environment, bringing about dire consequences on professional and personal life of the worker. Thus, decent work must be the appropriate benchmark for the creation of new jobs. It is also shown that the flexibilization of the propaganda rights by certain pressure groups has as main goal to reduce or eliminate rights, based on fallacious data depicting an increase of competitiveness and jobs. In addition, the flexibility implies a growth of the precarization of the work - a reality felt by many workers subjected to such a situation due to the unemployment phenomenon whose origin is not in the protectionism of the norms. It is necessary to expand and structure the constitutionally legitimate institutions to monitor and curb the precarized work, as well as all practices that go against the dignity of the worker. It is also shown the loss of power of the sindicates in the last few years as a consequence of the pulverization workes and the capital attacks through the productive restructure whose outsourcings and privatizations are notorious examples

Regime constitucional do direito privado das organizações religiosas

In Brazil, constitutional clauses regarding religious freedom have concrete applications in Private Law. Church-State Law, or "Ecclesiastical Law of the State," studies the legal principles which may be applicable to religious activity, exercised individually and collectively. The study of Church-State Law in Brazil lacks a thorough introduction to the constitutional and civil aspects of religious organizations: such an introduction is the main end of this work. Following a brief introduction, the main aspects of religious freedom and the principle of private autonomy as it concerns religious organizations are explained. A careful introductory analysis of Church-State Law in Brazil is thus developed: (1) the historical aspects, including a detailed account of the relations between Catholicism, the established religion up to 1889, and the government; (2) the current constitutional principles, as presented in the text of the federal Constitution of 1988, regarding the rights and claims of religious organizations; (3) how the same constitutional principles are to be used in the interpretation of Private Law (especially the Civil Code of 2002), fostering and preserving the uniqueness of religious organizations in the Brazilian legal system. A brief complementary chapter presents some aspects of the legal position of religious institutions in three other nations whose constitutional documents have influenced the current Brazilian federal Constitution (France, Spain, and the United States)

A alteração do tipo penal de adulteração de combustíveis: reflexo da constitucionalização do direito penal no mercado de combustíveis

The neoconstitutionalism led to a process of ethical revaluation of the normative systems and the process of constitutionalization of the many fields of law. This study examines the consequences of this process in criminal law, so important a Law field for the protection of the most valuable assets by the society, including the fundamental guarantees, thus emphasizing the necessity of protection of the collective and individual rights, which are guided by the observance of the defendants individual rights in the course of criminal proceedings and the search for the best efficiency of penal protection, according to the corollaries of defense against the state (prohibition of the excess or Übermassverbot) and the provision of rights by the state (prohibition of insufficient protection or Untermassverbot). The offense of fuel adulteration is taken as an object of study, since it is a vital market to a nation dependent of people and good s movement for their living, driven by fossil and biofuels. Such a crime affects essential legal interests to the development of society, interests such as the environment, consumer relations and economic order, particularly the principle of free competition. This paper seeks to analyze the need of a greater efficiency of this particular criminal protection, once concluded the conduct harm and social fear as a consequence by it as growing, and therefore having its former crime type, engraved in Article 1 of Law No. 8.176/1991, rewritten in compliance with the criminal law s principle of legality. Thus, the reformation proposals and legislative creation involving this crime were observed, with emphasis on the bill No. 2498/2003, which keeps it as blank heterogeneous criminal norm, kind of penal normative whose constitutionality is raised, including the forethought of criminal responsibility in the perpetrating of the offense as culpable and subsequently increasing the applicable minimum penalty, as well as the inclusion of new activities in the typical nucleus

Estimates of genetic correlations between days to calving and reproductive and weight traits in Nelore cattle

Data comprising 53,181 calving records were analyzed to estimate the genetic correlation between days to calving (DC), and days to first calving (DFC), and the following traits: scrotal circumference (SC), age at first calving (AFC), and weight adjusted for 550 d of age (W550) in a Nelore herd. (Co)variance components were estimated using the REML method fitting bivariate animal models. The fixed effects considered for DC were contemporary group, month of last calving, and age at breeding season (linear and quadratic effects). Contemporary groups were composed by herd, year, season, and management group at birth; herd and management group at weaning; herd, season, and management group at mating; and sex of calf and mating type (multiple sires, single sire, or AI). In DFC analysis, the same fixed effects were considered excluding the month of last calving. For DC, a repeatability animal model was applied. Noncalvers were not considered in analyses because an attempt to include them, attributing a penalty, did not improve the identification of genetic differences between animals. Heritability estimates ranged from 0.04 to 0.06 for DC, from 0.06 to 0.13 for DFC, from 0.42 to 0.44 for SC, from 0.06 to 0.08 for AFC, and was 0.30 for W550. The genetic correlation estimated between DC and SC was low and negative (-0.10), between DC and AFC was high and positive (0.76), and between DC and W550 was almost null (0.07). Similar results were found for genetic correlation estimates between DFC and SC (-0.14), AFC (0.94), and W550 (-0.02). The genetic correlation estimates indicate that the use of DC in the selection of beef cattle may promote favorable correlated responses to age at first mating and, consequently, higher gains in sexual precocity can be expected.

Otimização topológica de estruturas termoelásticas tridimensionais

This work presents an optimization technique based on structural topology optimization methods, TOM, designed to solve problems of thermoelasticity 3D. The presented approach is based on the adjoint method of sensitivity analysis unified design and is intended to loosely coupled thermomechanical problems. The technique makes use of analytical expressions of sensitivities, enabling a reduction in the computational cost through the use of a coupled field adjoint equation, defined in terms the of temperature and displacement fields. The TOM used is based on the material aproach. Thus, to make the domain is composed of a continuous distribution of material, enabling the use of classical models in nonlinear programming optimization problem, the microstructure is considered as a porous medium and its constitutive equation is a function only of the homogenized relative density of the material. In this approach, the actual properties of materials with intermediate densities are penalized based on an artificial microstructure model based on the SIMP (Solid Isotropic Material with Penalty). To circumvent problems chessboard and reduce dependence on layout in relation to the final optimal initial mesh, caused by problems of numerical instability, restrictions on components of the gradient of relative densities were applied. The optimization problem is solved by applying the augmented Lagrangian method, the solution being obtained by applying the finite element method of Galerkin, the process of approximation using the finite element Tetra4. This element has the ability to interpolate both the relative density and the displacement components and temperature. As for the definition of the problem, the heat load is assumed in steady state, i.e., the effects of conduction and convection of heat does not vary with time. The mechanical load is assumed static and distributed

Método de Otimização Topológica em Estruturas Tridimensionais

The topology optimization problem characterize and determine the optimum distribution of material into the domain. In other words, after the definition of the boundary conditions in a pre-established domain, the problem is how to distribute the material to solve the minimization problem. The objective of this work is to propose a competitive formulation for optimum structural topologies determination in 3D problems and able to provide high-resolution layouts. The procedure combines the Galerkin Finite Elements Method with the optimization method, looking for the best material distribution along the fixed domain of project. The layout topology optimization method is based on the material approach, proposed by Bendsoe & Kikuchi (1988), and considers a homogenized constitutive equation that depends only on the relative density of the material. The finite element used for the approach is a four nodes tetrahedron with a selective integration scheme, which interpolate not only the components of the displacement field but also the relative density field. The proposed procedure consists in the solution of a sequence of layout optimization problems applied to compliance minimization problems and mass minimization problems under local stress constraint. The microstructure used in this procedure was the SIMP (Solid Isotropic Material with Penalty). The approach reduces considerably the computational cost, showing to be efficient and robust. The results provided a well defined structural layout, with a sharpness distribution of the material and a boundary condition definition. The layout quality was proporcional to the medium size of the element and a considerable reduction of the project variables was observed due to the tetrahedrycal element

Alternância no uso dos modos indicativo e subjuntivo em orações subordinadas substantivas: uma comparação entre o português do Brasil e o francês do Canadá

The purpose of this work is to analyze the use of the indicative mood, instead of the subjunctive prescribed by the normative grammar, in complement clauses introduced by the conjunction que in Brazilian Portuguese. Contexts of use of the subjunctive according to grammatical prescription, and contexts of fluctuation on the use of that verbal mood were analyzed, in an attempt to investigate what interferes on the choice of the mood by the user of the language. This study is based on North-American Functional Linguistics theoretical perspective, oriented to analyzing language in use, in the light of the principles of grammaticalization and markedness. The results obtained support that the contexts that favor the indicative over the subjunctive are those composed by a complement clause functioning as a direct object the unmarked clause of all complement clauses and by a verb on the main sentence that belongs to the semantic field of low certainty, corresponding to the epistemic sub-mode the unmarked category of the deontic sub-mode. The results indicate that pragmatics and semantics factors influence the language user on the choice of the verbal mood. This research also presents comparative data on the use of the indicative mood in place of the subjunctive in Brazilian Portuguese and Canadian French, aiming to providing suggestions on language teaching

Representações discentes sobre a afetividade nas aulas de inglês de uma escola técnica

This work has risen from the researcher s pedagogical practice at a technical school in Natal, and it aims to observ how affectiveness is noticed by the students in their English classes, since we can have an idea of technicist teaching, which foccus on the acquisition of technical abilities. As cognition and affectiveness are considered indivisible elements in this research, we tried to identify the linguistic signs that express the students representations about affectiveness in their English classes. We used the Systemic Functional Linguistics approach to study the Ideational metafunction of Halliday (1994), by means of the transitivity system, to show how the clauses are used to illustrate these representations, and the interpersonal metafunction, that deals with the relationship between the teacher and the students. We tried to identify the most common processes (HALLIDAY, 1994) mentioned by the 68 students who participated in this work. We used learning narratives (BARCELOS, 2006) submitted to Wordsmith Tools computing program (SCOTT, 2009), whose results indicate the most frequent lexical items found in their narratives. The lexical choices seem to indicate that affectiveness is noticed as a composing element of the English classes in that school. There are representations of interacting classes, where the students needs are considered. These representations are built in the relationship of the students and the teacher, and they are grammatically realized by means of the polarity adjunct no , the intensity adjunct very , and the nominal group the teacher . The relational and mental processes (be) and (like) are the most used in their narratives, and we also observe that affectiveness and disponibility to help the students are considered the most important attitudes in their representations. The Appraisal system is used to analise the choices related to the attitudes and judgement of the students, that show appreciation for interacting classes, but there is still authorithary berhavior from the teacher in the English classes

Estratégias de relativização no português brasileiro e implicações para o ensino: o caso das cortadoras

This work consists of a cognitive-functional approach of relativization strategies of Brazilian Portuguese (BP), this is, standard relatives (with preposition or without it) and non-standard relatives (copiadora and the deletion pattern), and it emphasizes the last one. We investigate the use of the relative construction strategies in spoken and written texts produced by speakers from different school levels in a specific situation: a face-to-face interviewing. Our database is the corpora Discurso & Gramática: a língua falada e escrita na cidade do Natal e a língua falada e escrita na cidade do Rio de Janeiro. We contrast the use of the standard relative to the deletion pattern in prepositional context, by considering cognitive, social and interactional motivations for the use of the deletion pattern instead of the standard one. Our research leads us to verify that the deletion pattern is fixing as the preferred relativization strategy in prepositional contexts, and, in this way, it brings out a grammaticalization process in working. For this reason, we propose to take this relative construction as a common way to structure a relative clause, in the same way we take the standard pattern. Finally, we discuss the treatment of questions related to the processes of teaching and learning of Portuguese language and some suggestions are given in terms of class activities. We expect that the development of this research may give both support for the Portuguese teachers and suggestions to improve the teaching and learning process of Portuguese language, contributing in special to the treatment of the syntax of complex clauses.