A cláusula de melhores esforços (best efforts) na prática jurídica brasileira: uma nova perspectiva

A utilização da cláusula de melhores esforços, ou best efforts, é prática comum do empresariado e advogados nacionais. Este trabalho realiza um levantamento a fim de demonstrar a alta incidência em acordos sofisticados entre acionistas de companhias abertas brasileiras. Tal inclusão tem fortes motivos econômicos, a justificar o reconhecimento e interpretação pelo aplicador do direito nacional. O padrão de conduta dessa obrigação de meio deve ser analisado por critérios distintos, por meio de elementos subjetivos e objetivos, bem como à luz do contexto social e usos e costumes relacionados, baseados em normas e princípios de direito privado amplamente aceitos. A escassa jurisprudência sobre o tema bem como a já consolidada jurisprudência norte-americana contribuem para o melhor entendimento sobre a natureza jurídica e o modelo de interpretação de conduta a ser aplicado, diferenciando a obrigação de melhores esforços dos deveres decorrentes da boa-fé objetiva. Entre as conclusões, pode-se mencionar que a cláusula de melhores esforços não deve ser igualada aos deveres de boa-fé ou a um mero dever moral. Seu reconhecimento legal como padrão de conduta distinto, apurado conforme cada caso, deve ser amparado pelo ordenamento jurídico nacional

Ética na pesquisa em Administração

Ethics on scientific research is approached and often discussed in several areas of knowledge connected to health. In the Administration area there are very few studies which approach the topic of ethics on research. The present paper tried to fill in this gap in the production of knowledge about the topic, investigating how the ethical principles found in the literature and in the codes of conduct are noticed and taken into account in Administration research activities developed by acting researchers in Administration Post Graduation Programs. Theoretically speaking, the study was based mainly on the approaches by Creswell (2007) and Bell and Bryman (2007), which discuss the research ethical principles. Methodologically speaking it was all about an exploratory kind of study, with qualitative research approach. Upon data collection, personal interviews were made aiming at its depth and focus groups were formed. The first stage had interviews with four experienced researchers who took part on a teaching and researching event and on the second stage we used the focus group technique. The focus groups were done in four college institutions along with the post graduation programs in Administration in the states of Rio Grande do Norte, Paraíba and Pernambuco, in Brazil. The results suggest the existence of general principles and parameters for the scientific research recommended in the literature and on official resolution. However, in the Administration area, there are only a few recommendations of good practices when it comes to submitting articles for scientific publications but we found no guidance with ethical principles and parameters which cover all the activities in the scientific research and which specifically meet the research particularities in Administration. The main ethical dilemma pointed by the researchers refers to ethical questions which arise at the time of data collection and on disclosing the results. Most researchers do not know the guidelines and the ethical norms on ethics about research that we have in our country neither do they send in their projects to the research ethics committee. When dilemma arises, they decide the ethical question based on their values and common sense. These elements confirm the thesis that the researcher s procedure in the research activities in Administration is predominantly signed by personal values or by common sense and less by ethical principles, whether by not knowing the normative instruments related to ethics or by disagreeing with any disciplining rules on ethical behavior in the research

Caminhos de sobrevivência institucional: a gestão do núcleo de oficinas e artes profissionalizantes laís aderne

The object of this study is the organizational management, particularly the relational processenvironment organization focused on the survival of the space Department of the Arts and Crafts Mestre Raimundo Cardoso linked to the structural arrangement of the Liceu do Paracuri.. Aimed to understand the ways of organizational survival, from the actors' perception of the Center for Arts Career Workshops and Lais Aderne, with investments that discuss the theoretical models of management, institutional theory, cultural organization and institutionalization of public education requirement of the municipal light LDB. (1996) used a qualitative approach with a view to RICHARDSON (1985). The data generated were analyzed based on the technique of content analysis, the thematic type [categorical] Bardin (1977). The results indicate that the institutionalization of the arrangement of the Liceu do Paracuri emerges meet the legal requirement of the autonomy of municipal educational administration under the aegis of sustainable development, quality of life and basic education from the municipal Hélio Gueiros (1993-1996 ). More specifically the Center for Arts and Crafts Laís Aderne, the unit of analysis, the subjects said that this space is designed as a link between the demands of school and community searching through interdisciplinary activities educate and train manpower mainly potter. They did mention the existence of institutional factors (history, culture, habits, values) represent a strong socio-cultural element to the actors belonging to the core that guides behavior and actions of these individuals, fueled by a sense of hope, inclusion of future artisans in culture ceramist. It made a shared management, the existence of a unique work through cultural revival. However, over the course of time, the core is faced with dilemmas of managing transitions mainly regarding governmental, technological beyond endurance by the craftsmen for the optimization of their work. The conclusion - that the paths chosen for the organizational survival of the core meaning and guiding their actions in the systematization of conduct, representations, memories and traditions through habits and choices of consensus, the viewpoint of the actors

A mídia impressa sergipana nas eleições para governador em 2006: cobertura do Cinform, correio de Sergipe e jornal da cidade

The elections for governor in 2006 with its victory Marcelo Déda Workers Party (PT), were a landmark in the state of Sergipe, for the first time, called progressive fronts (an alliance of parties formed mostly by origin of the left) broke the hegemony of two political groups, Franco and the Alves, whose direction was in force for over 30 years. This study proceeds on the assumption that the print media has certain standards of conduct in covering the election period. Therefore, this study seeks to quantify, classify and compare data from three newspapers more representative of the State of Sergipe (Cinform, Cidade Journal and Correio de Sergipe) to analyze the behavior of these journals, such as private apparatus of hegemony in election coverage 2006. It also uses the concept of hegemony Gramsci and theories of journalism framing (Entman and Porto) and agenda setting (McCombs and Shaw) to identify these patterns

Sobre uma cultura do mal-estar com a política

The current dissertation has as its main object of study the malaise with politics phenomenon. To comprehend it, is carried out in this work a inquiry, in different stages of analysis, based in the empirical data raised by the research Os Processos Sociais de Recepção do Horário Gratuito de Propaganda Eleitoral , made by the Grupo de Estudos Mídia e Poder, of the Universidade Federal do Rio Grande do Norte, during the local elections of 2004 in the city of Natal. Based in the focus group technique, such research raised an ample set of information about the decoding process of the electoral television programs, made by six different groups of citizens from the popular classes. Beginning from the presuppose which such process is influenced by the representations about politics made by those subjects, we use that set of empirical information to inquiry not only the decoding, but that same representations which this process is based. In this way, we analyse, in one side, the globally contrary decoding which subjects made from a conforming code of opposition and, in the other, the structure of feeling which it s based, called structure of feeling of the malaise with politics. Such structure is compound by generating themes which expresses the contraposition about the institutionalized politics and, in the same time, a resignation about politics which fortifies the dominant groups hegemony. We support the thesis which this set of representations about politics is caused by the denial of rights frame which those subjects are immersed

Os batistas regulares e as armadilhas históricas do iluminismo

Taking the Regular Baptist Churches of Rio Grande do Norte as the research field, this paper seeks to contribute to a new, more appropriate vision of the new picture of the religiosity of the Brazilian Protestantism. Established since 1938, the Regular Baptists Churches have been representing and producing their speech through their 58 churches spread throughout the state, besides a Theological School, two camps, an association (AIBRERN) and a House of Spiritual Assistance to Drug Dependents (CAEDD). A reflection of the symbolic substratum of the spirituality of the group agrees with the external description of its presence in RN. We understand that the Regular Baptists represent yet one more translation of a modern religious speech and that their focus is on the inheritance of a Christian fundamentalism based on the illuminist rationalism. In this way, we observed this group trying to find in its doctrines, practices and rules of conduct a demonstration that the spirit of the post-modernism challenges the group to new dynamics in the conservative model of its spirituality

Paradigma constitucional brasileiro da livre concorrência e da defesa do consumidor face às estruturas de poder no mercado

The Federal Constitution of 1988, when taking care of the economical order, denotes special concern in the abuses of the economical power and the disloyal competition. The mark to mediate of all this is, in fact, the defense and the consumer's protection, once this is final addressee of whatever if it puts at the consumption market. The coming of the Law 8.078/90, Code of Protection and Defense of the Consumer, inaugurates a time of effective concern with the homogeneous individual interests originating from of the consumption relationships. In this point, the focus of main to face of the present work lives, in other words, the protection of the right to the individual property, especially manifests in the exercise of the trade freedom that keeps direct relationship with the respective social function the one that is destined. The code of the consumer's defense doesn't just take care of this, but also of the other star of the relationships of the consumption. When affirming in the interruption VI of the art. 4th that the national politics of those relationships, finds ballast in the prohibition and repression efficient of all of the abuses committed in the consumption relationships, keeping inherent relationship-causality in the economical order, sculpted for the article 170 in the Constitution of 1988. In the generic plan, the mark of the present work is to question concerning the limits of the trade freedom and previsible collisions with protection norms and the consumer's defense, as well as factual convergences of those small systems, especially in what he/she refers to the innate interests to the suppliers. In the specific plan, we aspirated to identify the protection device-commands to the actors of the trade relationship, capable to guarantee the free competition in a global economy of market, seeking especially the Well-being, for soon afterwards, in an analytical perspective, to discover the possible applications that it holds the Federal Constitution, in headquarters of economical freedoms. It was observed that the consumer today doesn't need only of laws that their needs, fruit of the vulnerability that it is him/her meditate innate. He/she lacks, yes, of effective mechanisms that prevent lesions that can be them impinged by the suppliers at the time in that you/they are useful to repair the damages when happened, punishing the author of the damage

A função social do contrato como concretização de direitos fundamentais nas relações privadas

This dissertation deals with the social function of the contract, based on constitutional principles, especially those relating to fundamental rights. The social function of the contract (general clause) is described in the Civil Code so intentionally generic, no precise criteria to define it. Because of the fluidity of this principle, it is justified its closer study, seeking to assess its various meanings and looking away from the legal uncertainty that an unlimited conceptual vagueness can cause. The social function of the contract arises from a transformation experienced in private law from the inflows received from the Constitutional Law, the result of an evolutionary process by which it became the state structure, leaving the foundations of the classical liberal state and moving toward a vision guided by existential human values that give the keynote of the Welfare State. Arose, then the concern about the effectiveness of fundamental rights in relations between individuals, which is studied from the inapplicability of fundamental rights in private relations (U.S. doctrine of State action), passing to the analysis of the Theory of indirect horizontal effect of fundamental rights (of German creation and majority acceptance), reaching the right horizontal efficacy Theory of fundamental rights, prevailing Brazilian doctrine and jurisprudence. It has also been investigated the foundations of the social contract, pointing out that, apart from the provisions of the constitutional legislation, that base the principle on screen, there have also been noticed foundations in the Federal Constitution, in devices like the art. 1, III, the dignity of the human person is the north of the relationship between contractors. Also art. 3rd, I CF/88 bases the vision of social covenants, equipping it for the implementation of social solidarity, as one of the fundamental objectives of the Republic. Still on art. 170 of the Constitution it is seen as a locus of reasoning in the social function of the contract, the maintenance of the economic order. It is also studied the internal and external aspects of the social function of the contract, being the first part the one that considers the requirement of respect for contractual loyalty, through the objective good faith, as a result of the dignity of the hirer may not be offended by the other through the contract. On the other hand, the external facet of the social function of the contract, in line with the constitutional mandate of solidarity, indicates the need for contractors to respect the rights of society, namely the diffuse, collective and individual third party. In this external appearance, it is also pointed the notion of external credit protection, addressing the duty of society to respect the contract. There has been shown some notions of the social contract in comparative law. Then, there has been investigated the content of principle study, through their interrelationships with other provisions of private and constitutional law, namely equality, objective good faith, private autonomy and dignity of the human person. We study the application of the social contract in contractual networks as well as the guidance of conservation of contracts, especially those denominated long-term captive contracts, considering the theory of substantive due performance, concluding with an analysis of the social contract in code of Consumer Protection

Apelação no código de processo civil: uma análise sob o prisma do princípio da efetividade

The present dissertation, elaborated is based on the deductive method, through the use of the General Theory of Resources concepts, by the main types of judgments existing in the Code of Civil Procedure, the interlocutory judgment and sentence, as well as the features and effects that challenge these decisions, we sought to identify on this theme one of the greatest evils facing the justice system in the world, which is the processing delays. This slowness in adjudication affects seriously the principle of effectiveness, one of the postulates of procedural law and society as a whole. Thus, the use of tort serves to fight the interlocutory decision and appeal which challenges the judge`s ruling. It is a resource for excellence in appellate system as it meets with the most awaited decision of the process. In weighing the importance of the appeal that seeks to oppose the court decision today by the numerous reforms that the procedural system has been through, it has ended up to transform the process ineffective or inconsistent, for it is much easier to have efficacy in a interlocutory decision for preliminary injunction than by judgment on the merits of the judge. This is due to the prevision of the resources and their effect to those decisions. That is, the interlocutory decision involves interlocutory appeal only in the devolved effect, allowing its provisional execution, and the sentence has as recourse to appeal the double effect, remanding and suspension, which necessarily prevents its provisional execution. But it undeniably shows a paradox, because as to give effect to a measure that is based on a mere probability by a summary cognition, partial and superficial, and stop it on a decision by a court that is closer to the truth and sure, for a full and depleting cognition? It is seriously affect the principle of effectiveness. Therefore, starting from this ineffectiveness, sought to defend the solution of this problem with the approval of the bill n. º 3.605/2004 or the new Code of Civil Procedure project that modifies the general rule the effects of appeal. That is, remanding and suspensive, as to merely remanding effect to and thereby enable the provisional execution of the judgment of the court of the first degree of jurisdiction, giving effectiveness and enhancing the decision of the magistrate, making a fair distribution of time in the process and better guaranteed principle of access to justice

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)

Atuação dos profissionais de enfermagem durante o processo transfusional na UTI de um hostital universitário

Prospective descriptive study with quantitative approach, which aimed to analyze the relationship of the knowledge of Nurses and conduct assistance during the process of transfusion, to patients in the ICU of a university hospital in Natal-RN. The sample consisted of 27 professionals from the nursing staff (5 nurses and 22 nursing technicians), climbing in the ICU during the period of data collection. Data collection was through a questionnaire and structured form of observation, in addition to consulting the diary. The results were organized in SPSS 15.0, tabulated, cathegorized and analyzed by descriptive and inferential statistics. The results show a young population, aged between 21 and 32 years (63.0%), female (85.2%). Among those surveyed were the main type of stock, mostly technical, nursing (ρ= 0006), which have little time to experience - up to 2 years (ρ= 0008), did not know the DRC in 153 (ρ= 0019), held greater number of pipelines care in blood (ρ= 0018), the non-participation in training and feel informed about the process of transfusion, showed no significant differences. As for officials, highlighted only the time to experience more than 2 years, carrying out fewer procedures and feel informed about the blood. As for the pipes during the transfusion process, I found that the majority of pipes observed in both the stock and the staff were inadequate, with predominance in the first, both in the pursuit of conduct regarding the shortfall. The averages of inappropriate conduct, predominantly developed by stock, were higher in all stages for appropriate conduct. Analyzing the knowledge about the disease process, the stock market were those who had lower scores of knowledge in three stages. As the relationship between the pipes care and knowledge, we see that at all stages of the process of transfusion inadequate knowledge of the averages were higher, taking a significant difference in the stages pre-transfusion (ρ= 0012). When analyzing the average of pipes behind, we see that in inappropriate conduct were significantly higher (ρ= 0031), who had searched in inadequate knowledge. As for the frequency of total procedures performed, we found a significant predominance (ρ= 0049) of inappropriate conduct (88.9%) of which 81.5% were developed by professionals who had inadequate knowledge, showing moderate correlation (r = 0,516) and odds ratio of 2,750 times the development of inappropriate conduct in trade with inadequate knowledge. We conclude that the professionals surveyed, especially the technicians of nursing stock, showed serious deficiencies with regard to the development of pipelines and knowledge of the transfusion process, showing the inadequacy to develop this therapy. Facing the foregoing, we accept the alternative hypothesis proposed in the study, because we show that the inadequacy of knowledge about the process of transfusion influence in inappropriate conduct implemented by the nursing staff in ICU.

Monitoramento de raças de Bremia lactucae em 2010 e 2011 no Estado de São Paulo

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