A mediação como instrumento concretizador do direito fundamental à saúde: uma alternativa à judicialização de conflitos Natal 2013

In Brazil, the 1946 Constitution enshrined the right to health, having it defined as the possession of the best state of health that the individual can achieve. Already the Federal Constitution of 1988 lifted that right to the status of fundamental social right, which transcends the effectiveness and cure of the disease is based on the joint liability of public entities for the provision of a quality service, efficient and prioritize human dignity and comprehensive evaluation of patients. According to the World Health Organization, the definition of health, first characterized as the mere absence of disease, has become recognized as the need to search for preventive mechanisms to ensure the welfare and dignity of the population. Garantista this context, the growing seem lawsuits that deal with the implementation of public policies, especially in the area of the right to health, the omission of which the Government can result in the risk of death. Hence the concern of law professionals about whether or not the intervention of the judiciary in cases that deal with providing material benefits of health care. It claims to break the principle of separation of powers, disobedience to the principle of equality and the impossibility of judicial intervention in the formulation of public policy to try and exclude the liability of public entities. In contrast, the judiciary has repeatedly guardianships granted injunctions or merit determining the supply of materials indicated by the medical benefits that accompany the treatment of patients who resort to a remedy. In this context, mediation, object of study and resolution presented in this work, is presented as an instrument conciliator between the reserve clause and the right to financially possible existential minimum, as it seeks to serve all through rationalization of health services , avoidance of negativistic influence of the pharmaceutical industry, with prioritizing the welfare of the individual and the quality of relationships. This is alternative way to judicialization that in addition to encouraging and developing active citizen participation in public policy formulation also allows the manager to public knowledge of community needs. It is in this sense that affirms and defends the right to health is no longer the mere provision of medical care and prescription drugs, but a dialogue conscious existential minimum to guarantee a dignified life

Democracia brasileira: fortalecimento da participação popular

A democracia tem representado ao longo da História o mais perfeito mecanismo político de convivência social, encontrando na soberania popular seu fundamento e legitimidade. De berço grego, instituiu-se sob princípios que radicavam o poder político no povo, exercido diretamente na ágora ateniense. O iluminismo dos séculos XVII e XVIII reacendeu o ideal democrático, encontrando no positivismo sua base teórica. O poder passou a ser exercido por via de representantes eleitos periodicamente. O locus da atividade política era o parlamento, ambiente fechado e refratário à participação popular, cingida, à época, ao voto do cidadão nos períodos eleitorais. O distanciamento entre governantes e governados gerou déficit de legitimidade no modelo liberal clássico, levando o constitucionalismo do século XX a abandonar o rigor formal positivista, para adotar uma nova hermenêutica, de base axiológica e centrada na participação direta do povo nas instâncias do poder. A Constituição Federal de 1988 compendiou a democracia participativa em seu texto, declarando no parágrafo único, de seu artigo 1º, que todo o poder emana do povo. Consagrou como base da soberania popular o sufrágio universal, o voto direto, secreto e de igual valor, além do plebiscito, do referendo e da iniciativa popular de leis. Garantiu ainda a ação popular como ferramenta de cidadania. A participação popular foi restringida com o advento da Lei nº 9.907/98, que impôs bloqueios processuais para seu exercício, gerando déficit de legitimidade no sistema representativo brasileiro. O propósito desse trabalho é demonstrar a necessidade de se estabelecer um novo espaço público na ordem constitucional do Brasil, de textura aberta e dialógica e de perspectiva emancipatória, que customize a participação do povo nas instâncias do poder, a partir da desburocratização dos instrumentos de soberania popular já existentes e da adoção de outros institutos democráticos semidireto, notadamente a iniciativa popular de emenda à Constituição, a revogação de mandato eletivo e o veto popular

As zonas de processamento de exportação como instrumento de desenvolvimento e redução das desigualdades regionais

The existence of inequalities among the Brazilian regions is an indeed fact along the country s history. Before this reality the constitutional legislator inserted into the Federal Constitution of 1988, as a purpose of the Federative Republic of Brazil, the reduction of regional inequalities. The development has also been included as a purpose from the State, because there is an straight relation with the reduction of regional inequalities. In both situations is searched the improvement of people s living conditions. . In pursuit of this achievement, the State must implement public policy, and, for this to happen, it needs the ingress of income inside of the public coffers and support of economic agents, therefore the importance of constitucionalization of the economic policy. The 1988 s Constitution adopted a rational capitalism regime consentaneous with current legal and social conceptions, that s why it enabled the State s intervention into economy to correct the so-called market failures or to make the established objectives fulfilled. About this last one, the intervention may happen by induction through the adoption of regulatory Standards of incentive or disincentive of economic activity. Among the possible inductive ways there are the tax assessments that aim to stimulate the economic agents behavior in view of finding that the development doesn t occur with the same intensity in all of the country s regions. Inside this context there are the Export Processing Zones (EPZs) which are special areas with different customs regime by the granting of benefits to the companies that are installed there. The EPZs have been used, by several countries, in order to develop certain regions, and economic indicators show that they promoted economic and social changes in the places where they are installed, especially because, by attracting companies, they provide job creation, industrialization and increased exports. In Brazil, they can contribute decisively to overcome major obstacles or decrease the attraction of economic agents and economic development of the country. In the case of an instrument known to be effective to achieve the goals established by the Constitution, it is duty of the Executive to push for the law that governs this customs regime is effectively applied. If the Executive doesn t fulfill this duty, incurs into unjustifiable omission, correction likely by the Judiciary, whose mission is to prevent acts or omissions contrary to constitutional order

O licenciamento ambiental pelos municípios: uma análise sobre o federalismo cooperativo adotado pela Constituição Federal

In complex federal systems as that found in Brazil, which provides simultaneous attributions to of the Union, States and Cities in many aspects, the definition of performance limits of each of these entities, in procedural or material aspect, generates many (positive and/or negative) competence conflicts, bringing insecurity to general administered. Environmental licensing is one of the most important instruments of environmental management, seeking the realization of the fundamental right to an ecologically balanced and sustainable development. Despite its importance, the environmental licensing has not been more effective due the conflict related to the authority to regulate regardind environmental law. This essay will analyze the structure of competence distribution for conducting the environmental licensing processes, the conflict between laws, the performance of the municipal environmental agencies, the cooperation between the licensing agencies and the future about the additional regulatory law of article 23 of Federal Constitution

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

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)

O sistema de certificação do etanol brasileiro sob a ótica do princípio constitucional do desenvolvimento sustentável

The gradual inclusion of biofuels is a necessary change that countries must include in their energy mixes. Energy sources still widely used in the world, such as oil and coal, are endowed with a high pollution load to the environment, bringing damages to the water, to the air and to humans as well. In addition, although there are conflicting studies, they are also identified as major causes of the greenhouse effect and the global warming phenomenon. They are, moreover, finite sources of energy, given that its reserves will surely run out. However, even if the introduction of biofuels, such as ethanol, in the energy mix is crucial for the survival of the present and future populations, this insertion cannot settle so disorderly and, thus, one must ensure the quality of these resources and promote transparency in international trade. In this manner, a certification process for ethanol is essential to attest that this biofuel meets the sustainable requirements defined for its production. Hence, this study sought to address the importance of the adoption of certification in the ethanol industry, according to the principle of sustainable development, by analyzing the evolution of its concept, its combination with the fundamental objectives sculptured in the Constitution of 1988, its regulation under Brazilian laws and the need for a balance between economic activities and the mentioned principle. The work also encompassed the criteria used to establish certification standards and their participating actors, combined with a study of ongoing initiatives. Finally, the consequences of the adoption of a certification process for ethanol in Brazil were presented, both in terms of sustainable development and in international trade

Reserva de cargos e empregos públicos a pessoas com deficiência: instituições federais de ensino no RN

With a focus on the need for effectiveness of fundamental rights of persons with disabilities, this dissertation held a scientific research to analyze the degree of implementation of reservation of positions and public jobs to people with disabilities in the Brazilian State, because the 1988 Federal Constitution expressly determined such a reservation in your article 37, VIII. Highlight that this subject is enough evidence, given the large number of open public competition in recent years in Brazil, as well as recent proposals to grant equal rights to blacks (Bill nº 6,738/2013). In addition, the wording the constitutional device comes fomenting heated discussions on the subject, which are flowing on the doors of the judiciary and are spicy because such protection Microsystem vulnerable group has several gaps in the regulation of this policy. However, the research produced, unlike other related theme, does not address the problem of inefficiency in its constitutional theory, that is, abstractly, but also focuses on a specific analysis of this ineffectiveness within Brazilian society, so that research based on a bibliographical analysis, plus a study case law, at the national level, as well as in field research, while case study, focusing on the technique of the analysis of everyday life, because it was believed that the degree of realization of the constitutional norm debated is not yet a satisfactory degree of effectiveness. Soon, the methodological procedures chosen confirmed such a hypothesis and contributed to the study of realization of the fundamental right to work of people with disabilities in Brazil, the light of a Constitutional State, proposing a constitutionally appropriate model the greater effectiveness of the constitutional norm studied

Justiça restaurativa no sistema penal e processual penal como forma de concretização do estado democrático constitucional

Diante do atual modelo penal e processual penal não atender aos reclamos das partes interessadas, gerando um descrédito na Justiça de um modo geral, surge a Justiça Restaurativa como uma alternativa para solucionar tais problemas e como elemento de concretização do Estado Democrático Constitucional. A Constituição Federal de 1988 representa o símbolo maior do processo de democratização e de constitucionalização nacional. O Princípio da Dignidade da Pessoa contida no texto constitucional consiste num dos principais fundamentos da República Federativa do Brasil, funcionando como respaldo aos direitos e garantias fundamentais do cidadão, sobretudo na seara criminal. A partir do processo de constitucionalização nacional, ocorre uma releitura das legislações infra-constitucionais, que passam a ser interpretadas de acordo com o texto constitucional. Atualmente, a conjuntura jurídico-penal pátria está associada à ideia de garantismo, ligada ao conceito de Estado Democrático Constitucional. Apresenta-se a Justiça Restaurativa como um novo modelo de Justiça Penal, mais flexível e humanizado, visando além da aplicação da pena imposta pelo Estado, superar uma situação de conflito, na busca por resultados positivos no combate e redução da criminalidade, a satisfação da vítima e a mudança da cultura de violência, compatível com as diretrizes do Estado Democrático Constitucional. A partir da análise do direito internacional e de projetos e legislações nacionais envolvendo a Justiça Restaurativa, percebe-se a eficácia das medidas restaurativas na solução de conflitos dentro do Processo Penal, além da satisfação da vítima, do infrator e de familiares na participação dos encontros restaurativos, constituindo ferramenta de satisfação da dignidade humana, dentro de uma perspectiva humanista e garantista

A missão política do Supremo Tribunal Federal: análise de sua importância como corte constitucional para o controle do poder no Brasil

The following study proposes an analysis of the politic process which the brazilian constitutional justice faces, emphasizing the Supremo Tribunal Federal . For that purpose, we start by examining the intimate relationship between Politics and Law, in view of the most recent social systems theories, so that the political system is distinguished by the exclusiveness of using the physical force, intending to make coletive tying decisions, and the juridical system as a congruent generalization of the expectations towards the rules and principles, brought together under an interdependence by which both gather legitimacy and effectiveness. In this manner we can notice the political effects of the constitutional interpretation conducted by Judges as well as by other juridical professionals, because these ones decrease the overload of expectations which are pointed to the Judicature. Constitutional interpretation is democratized since the participative democracy arises and stablishes a permanent state of awareness around the exercise of power and favours the preservation of the pluralism (counter-majoritary principle) where we can find the origin of the democratic nature of constitutional courts, once, in most cases, their members are not elected by the people. After that, we analyse the historical posture of the Supremo Tribunal Federal as a constitutional court in Brazil, so we can realize the attempts to make it vulnerable to the appeals of governability and economical aims, agains which this court somehow has resisted, stressing its particularities. At the end, it s concluded that even the so-called acts of government, whose judiciary control is mostly repelled, are subjected to a constitutional analysis, last frontier to be explored by the Supremo Tribunal Federal in its role of exposing our republican Constitution

Sistema eleitoral proporcional : uma proposta técnico-politica para o Brasil

The present work aims to analyze the several proportional electoral systems from the contemporaries democracies in order to, in the end, purpose a system that better fits to the constitutional Brazilian order. In this direction, we pursued to indicate the main virtues and imperfections in proportional electoral systems in use in more than two hundred countries, especially relating to the positive and negative effects that these systems inject in the party systems, in the governability and in the representativity. In order to collect elements, and also before getting to the work s main point, other issues were approached, even in a shortened way. Nevertheless, in a position taking, we conclude the work opting for a proportional electoral system that potencializes the constitutional principles of representativity and governability as well as prints a party system strong and strict, once these are the depositaries of a democracy compromised with the Brazilian society

Qualidade do gasto público em educação para os municípios da região metropolitana de Natal-2007

The aim of this thesis is to evaluate the quality of public spending on education for the municipalities of the Metropolitan Region of Natal (RMN) in 2009 by use of two theories: The Theory of Welfare (Welfare State) and the Public Choice Theory (TEP), both important to understand the relationship between education and economics. The study also uses principles of microeconomics and public sector economics to get a better idea of the role of education in economy and society. It describes the development of the educational policy in Brazil from 1988 to the Federal Constitution of 2010, following the major changes in basic education during each government. The characteristics of the RMN municipalities were illustrated with socioeconomic indicators, while educational indicators were used to characterize each municipality regarding education. The model used in this study was developed by Bertê, Brunet and Borges, the data was collected on the back of the School Census 2009 and the Brazil Exam 2009 and it was processed quantitavely in the Information System on Public Budgets in Education (SIOPE) by use of the statistical method called standardized score of the normal cumulative distribution function. The quality of public spending on education is the result of the relation between performance indicator ratio and expense ratio. For the qualitative analysis of results, the criteria of efficiency, efficacy and effectiveness were used. The study found that municipalities with higher expenses showed a worse quality of spending and failed to convert the expenditure incurred into performance, thus confirming ineffectiveness

Narrativa autobiográfica como prática de formação e de atualização de si : os grupos referência e o grupo reflexivo na mediação da constituição identitária docente

The thesis: "autobiographical narrative as practical continuous training and updating of itself: the groups-reference and the reflexive group in the mediation of identity construction of teaching" begins in the founder matter: "What are the implications of groups-reference in the process of identity formation and the teaching role of teachers which is participating of the research? This object of study deals with the continuing education of teachers of Basic Education and the role of the reflective group as space-time of (re) construction of educational knowledge, for the recognition of yourself. The thesis defends that the autobiographical narrative, as a pedagogical tool and research, for the initial and continuous training, is presented as theoretical and methodological foundation necessary for identity formation of the teacher. The research is limited to the qualitative approach with a focus on the autobiographical narrative. The participants are six teachers, three teachers and three students-teachers. The corpus comprises six autobiographical narratives, six reports of successful experiences, two studies on the biographical work, and six individual testimonials about the impact in personal and professional life. The data analysis was to reference Dausien and Alheit (2006), Bruner (1997), Contreras (2002), Delory-Momberger (2007), Freire (2005), Giddens (2002), Josso (2004), new (1988, 2002), Passeggi (2001, 2002), Pineau (2004), Ricoeur (2004), Souza (2006), Tardif (2002) and Vygotsky (2005). The research revealed that the formation of identity as a teachers of the educators occurred in the reference group, involving the formal, non-formal and informal of the processes of knowledge , in a movement of alternation training that includes yourself, the other and the ambient. Also revealed that the pedagogical choices of the teachers studied aimed at minimizing educational gaps that were lived in both field personal and social; that the personal identity is configured as an identity narrative and the methodology of the biographical work, through the mimesis of continuing education, provided the passage from the group reflective to the group of reference

Aí eu era Antônio Brasil: contribuições de situações didáticas com conhecimentos históricos para a construção da identidade pessoal da criança na educação infantil

L'objectif de cette étude est de comprendre la relation entre les situations didactiques faisant appel aux connaissances historiques et la construction de l'identité personnelle pour les enfants dans l'éducation de la petite enfance. Sa question centrale se demande si les connaissances sont offrent des contributions à la construction de l'identité personnelle par les enfants de la petite enfance. Se distingue, lui aussi, entend contribuer à élargir le débat sur l'enseignement et l'apprentissage des thèmes historiques dans l'éducation des enfants, et permettre un dialogue avec d'autres enseignants dans cette étape de l'éducation. Ont été analysés par des principes théoriques et méthodologiques de qualité et a assumé les orientations méthodologiques de la recherche collaborative. Il a été constaté que la systématisation des situations didactiques impliquant la connaissance historique dans l'éducation de la petite enfance contribue à la construction de l'identité personnelle de l'enfant. Ceci, pour prendre possession de ces connaissances, ils recueillent des renseignements qui permet le plus large éventail de relations, afin de comparer les pratiques culturelles de son temps avec des pratiques à d'autres moments. Ainsi orientée, l'enfant cherche à raconter son histoire avec le thème historique à laquelle elle a eu accès, d'organiser et de construire des réponses des explications sur leur environnement et de lui-même. Tout cela montre à la réalisation que le processus d'internalisation des connaissances historiques de l'enfant est construit comme un sujet et, par conséquent, cette connaissance peut être conçu comme un médiateur dans la formation de l'identité personnelle

Ser professor de português: o que dizem os discursos reguladores, os alunos e os professores no contexto da formação inicial (UMINHO/Portugal e UFRN/Brasil)

The constitution of being a teacher of Portuguese occurs in a dynamic process involving various factors, such as the requirements of regulatory documents, the context of teacher formation, and the configuration of current society, per se. This study is aimed at reflecting on the initial formation of teachers of Portuguese and on official documents that face this formation, raising the following questions: (1) what does it mean to be a Portuguese teacher? (2) what is the vision of the subjects (teachers and students) involved with the formation of teaching the Portuguese Language? (3) how do these individuals deal with official documents? and (4) how do these subjects discourses relate? To understand the context of the formative processes and the knowledge inherent in them, first we take the studies of Garcia (1999) and Tardif (2002) as a theoretical framework, and to understand and interpret the utterances of the interviewees, we were grounded in the writing of Bakhtin (2003), for whom the object of the Humanities, the sciences of man, is the text, since man is, by nature, an expressive being. We situate this study in the framework of qualitative research. It is a multiple case study that focuses on two contexts: formation of teachers of Portuguese at the University of Minho, Portugal, and the Federal University of Rio Grande do Norte, Brazil. The data that make up the research corpus come from documents elaborated by the Ministries of Education of Portugal and Brazil and were adopted by the two teacher formation institutions cited, from individual interviews involving eight trainer teachers (four from each university), and from two group-interviews (one in each institution), done with students in training. Our analysis is divided into three stages: first, document analysis; second, analysis of the discourse of the teachers in both contexts studied; and, third, analysis of the speech of the students in training. It is noteworthy that our purpose in this research was not to come out with a definition like being a teacher of Portuguese is X, but we are interested, above all, in discussing the issues surrounding initial formation, seeking different points of view, and hearing voices coming from different social positions for better understanding our object of study. Our analysis reveals that the initial formation of teachers of Portuguese, both in Portugal and Brazil, occurs in a complex way, under the influence of various factors, including: (a) difficulties in having the individuals involved adapt to the demands of regulatory agencies; (b) students and teachers adequacy to the organizational model of the post-secondary institution; (c) teachers difficulties to deal with the learning problems of students who have limited schooling basis and come from distinct socioeconomic realities; (d) a search for the establishment of methodologies for teaching and learning the Portuguese Language more adequate to reality; and (e) a search for a definition of professional knowledge needed for the teaching practice