DEVIDO PROCESSO LEGAL E PROCESSO ADMINISTRATIVO SANCIONADOR NAS AGÊNCIAS REGULADORAS

This paper discusses the growing attention that, over the last decades, has been given to the administrative procedure in Administrative Law, as it also highlights the procedures which are in tune with the new trappings of this legal field. It focuses on the sanctioning competence of regulatory agencies, notably what concerns the procedural guide that conditions its exercise. It aims at gathering varied elements, many times dispersed over the legal system, so it is possible to list, with a satisfactory degree of detail, the procedural constitutional guidelines which are indispensable to the sanctioning of private entities through punitive action by regulatory agencies. It highlights the due legal process clause, for the abundance of the protective set there is around it, as a guiding constitutional principle for the application of sanctions by regulatory agencies. It examines the repercussion of the constitutional principle of the due legal process on Administrative Law, focusing on the most relevant principles on which the first unfolds itself. It analyzes, in light of the due legal process principle, the sanctioning administrative procedure developed in regulatory agencies. In conclusion, it is asserted that there is no room, in the Brazilian legal system as a whole, for sanctions to be applied summarily; that there reigns, in our system, an absolute presumption, dictated by the Constitution, that only through regular procedures can the best and fairest decision, concerning cases in which the rights of private parties could be affected, be taken by the public administration; that, respecting the principle of the right to a fair hearing, it is indispensable that there be motivation of a decision that imposes a sanction; that there should be, in homage to the principle of full defense and for the need to preserve the autonomy of the regulatory party, an appeal court in every agency; that the principles listed in the federal law No. 9.784/1999 should be mandatorily monitored by the agencies, for this is the only alternative consistent with the Constitution

A aplicação do acordo sobre subsídios e medidas compensatórias pelo estado brasileiro

The Multilateral Trading System has evolved and presented new international mandatory rules to States. Along with the World Trade Organization constitutive treaty, Brazil has incorporated the Agreement on Subsidies and Countervailing Measures (ASCM) in the national legal system. That treaty limits de scope of subsidies concession by governments since this practice can constitute a mechanism of commercial disloyalty, affecting national industrial development in the importing country. At the same time, the multilateral agreement grants defense legitimate instruments to States, among them the possibility of domestically and unilaterally imposing countervailing measures to subsidized products that enter the national territory. Since the issue concerns both international and domestic level in complementary grounds, this research, besides investigating the treaty related obligation, aims at studying the national legal fundaments to ASCM s application by the Brazilian State. Therefore, the essential point resides in the State s conduction of its international trading and also in its available and constitutionally established mechanisms of economic intervention. State s regulating power reveals itself as a fundamental prerogative to succeed in the internalization of international agreement s requirements in the domestic legal system, which represents a basic prerequisite to the implementation of countervailing measures. Once the whole normative outlines are apprehended, this study shall scan the administrative process of trading defense main elements, along with the means of controlling public administration acts. The action taken by the public organs that directly intervene in foreign trade shall be analyzed as well, so as to enable reasoning if the unilateral application of countervailing duties by the Brazilian State is happening on legitimacy grounds

Ativismo ministerial na implementação de políticas públicas

The research aims to analyze the reasons and the unique role of prosecutors in the promotion of public policies. The opening lines deal with the evolution and expansion of the general theory of the fundamental rights in the international and national levels and that have led to the creation of a welfare state concerned with carrying out positive actions which aim at the community well-being. Thus, it is clear that, after the uneven development of the Brazilian democracy, the Constitution of 1988 not only has erected to a state socially responsible, but also built a system of guarantees which highlights the significant expansion of the Powers of the Public Ministry and has now taken an outstanding position in regard to collective rights, allowing, at the same time, its members to perform the syndication of state actions, particularly public policies, correcting the course of these administrative processes in the presence of poor management and inactivity of the public administrator when acting in defense of fundamental rights. This ministerial activism, even facing the obstacles and boundaries submitted to its pursuit, has shown an increase in actions that culminated, in the last ten years, in a significant number of judicial and extrajudicial measures that indicated the correction of public policies and actions in areas of health, education, housing and the environment. In this process of monitoring and doing, the important role of the other social characters is highlighted, especially the one of the citizen who is responsible for most of the complaints that start the initiatives of the Public Ministry and that can be deployed through a significant list of judicial and extrajudicial instruments, especially the important procedure that allows the hearing and participation of the involved in the implementation of public policies, enabling a collective even a consensual solution of the matter generated among the Public Administration. Given these initiatives, the ministerial activism has established itself as a movement of its own characteristics, aimed to guarantee the fundamental rights, especially when these are not targeted by state actions that should contribute to the achievement of the democratic state of law idealized by the Federal Constitution without any distortion of direction. Nevertheless, this activism still seeks for its full accomplishment in the practical world

A Competência normativa das agências reguladoras e seus limites principiológicos no direito brasileiro

The transition of the liberal state to welfare state, globalization and the crisis of funding from the government spending on the multiple roles demanded an overhaul of the means of intervention in the economic domain and structure organizational of the Public Administration by enhancing the performance of regulatory functions. Therefore appear in Brazilian law independent regulatory agencies with legal administrative particular that gives autonomy increased, with fixed terms and stability of its leaders, police and competencies, normative and administrative judges. In this scenario, given the autonomy granted by the laws of the creation of regulatory agencies, the legislative competence becomes the most contentious issue, as not infrequently is innovation in the legal system. The main foundations of innovative extension producible by regulatory agencies, which diverges doctrine, are the constitutional attribution of own competence of the Public Administration and the discretionary power. Thus, it is necessary to delimit the constitutional and legal foundations of special legislative powers of these autarchies in our legal system, seeking ways to limit and control the production rules of those entities, for the purpose of position them before the powers constitutionally constituted. We note that with the constitutionalisation of administrative law regulatory agencies found limits to its performance in the normative constitutional principles, especially through the principles of efficiency, morality and proportionality, which has enabled a more effective control of their normative acts

Parâmetros de concretização judicial do direito fundamental à saúde no fornecimento de medicamentos

In Brazil, social rights have always been considered secondary legal categories, whose implementation could wait for the pending of political decisions. At the end of the Second World War, International Law emphasizes the protection of human beings, raising his dignity as a legal pillar of the legal orders and one of the main foundations of Constitutions. At the post-positivism Constitutionalism, the realization of social rights receives special attention with the assumption of supremacy and normativity of the Constitutions, while the judiciary participates in the realization of democracy, not only as applicator of laws, but also as the guardian of constitutionality of the acts and administrative omissions, creatively contributing to the constitutional achievement, filling gaps and normative state omissions. In this aspect, the supply of medicines, whose costs can not be supported by the individual, keep a close connection with the right to life, health and dignity of the human being, as the subject of numerous lawsuits directed against the Public Administration. Such phenomenon has caused intense debate regarding judicial activism and legitimacy of these decisions, particularly on the need to define what are the limits and possibilities considering the principle of separation of powers and the principle of reserve of the possible; bieng this the problematic developed in this research. Thus, this research aims to verify the legitimacy of judicial decisions that determines to the Public Administration the compulsory providing of medicine to those who can not afford the cost of their treatment, as well as, contribute to the dogmatic constructions of parameters to be observed by judicial interference. Regarding the methodology, this research has an investigative and descriptive caracter and an theoretical approach based on bibliographical data collection (judicial and doutrine decisions) that received qualitative treatment and dialectical approach. As a result, it is known that the judicial decision that determines the supply of medicines to those individuals who can not afford them with their own resources is legitimate and complies with the democratic principle, not violating the principle of separation of powers and the reserve of the possible, since the judicial decison is not stripped with an uniform and reasonable criteria, failing to contain high burden of subjectivism and witch signifies a possible exacerbation of functions by the judiciary, suffering, in this case, of requirement of legal certainty. It is concluded that the Court decision that determines the government the providing of medicine to those who can not afford the cost of treatment should be based on parameters such as: the protection of human dignity and the minimum existencial principle, the inafastable jurisdiction principle; compliance critique of the possible reserve principle; subsidiarity of judicial intervention; proportionality (quantitative and qualitative) in the content of the decision; the questioning about the reasons for non-delivery of the drug through administrative via; and, finally, the attention not to turn the judiciary into a mere production factor of the pharmaceutical industry, contributing to the cartelization of the right to health

Educação ambiental: mediações sociais e políticas e a indolência do Poder Público à sua inclusão no ensino formal

As a result of the prediction of irreversible changes on necessary conditions to maintain life, including human, on the planet, environmental education got the spotlight in the political scenario, due to social pressure for the development of individual and collective values, knowledge, skills, attitudes and competences towards environmental preservation. In Brazil, only in 1999 the right for environmental education was officially granted to people, having the status of essential and permanent component in the country s education. Since then, it has been Government s duty, in each federal branch, to plan actions to make it happen, in an articulate way in all levels and modalities of the education process, both formally and informally. This work of research has environmental education in the school as subject matter, and aims on analyzing social and political mediations established between this National Environmental Education policy and the contexts associated to the legislative production process, the political nature of the conceptions about environmental education that underlie Law 9.795/99 (Brazil, 2009c) and also Rio Grande do Norte Government s actions and omissions related to the imperative nature of the insertion of environmental education in the schools ran by the state, during the ten years this law has been in force. The investigation of the subject matter was led by a social and historical understanding of the social and environmental phenomena, as well as of the education system as a whole, considering that only through a dialectical view we can see the real world, by destroying the pseudo-concreteness that surrounds the topic. While analyzing, we assumed that in face of the dominance of a social organization in which market regulations rule on environmental ones, by developing individual and collective critical conscience, environmental education can become a threat to dominant economical interests in exploiting natural resources. The results of this research suggest that as an educational practice to be developed in an integrated, continuous and permanent fashion in all levels and modalities of formal education, environmental education has not yet come to pass in the state of Rio Grande do Norte, due to the neglect and disrespect of the government when facing the need of promoting the necessary and legally appointed measures to make it present in the basic education provided by the state. The legislators silence when it comes to approving a regulation on environmental education essential to define policies, rules and criteria to teaching the subject in the state and the omission from the public administration regarding critical actions in order to integrate in public schools the activities related to the National Environmental Education Policy, represent a political decision for not doing anything, despite the legal demand for an active position. This neglecting attitude for the actualizing of strategically concrete actions, urgent and properly planned for the implementation of environmental education in schools in a multidisciplinary way, exposes the lack of interest the predominant classes have in such kind of education being made available, as it could be developed based on a critic political view, becoming a political and educational action against dominance. When analyzing the basic principles and fundamental goals in Law 9.795/99 (Brazil, 2009c) the development of a critic environmental education is really possible and concurs with the National Environmental Education Policy, reflecting the social and political mediations established between this public policy and the contexts associated to its legislative production process, which are responsible for approving a regulation which also represents the mind of the people about environmental protection above anything else

Diagnóstico ambiental da gestão e destinação dos resíduos da construção e demolição (RCD): análise das Construtoras Associadas ao SINDUSCON/RN e empresas coletoras atuantes no município de Parnamirim - RN

Surveys carried out in many Brazilian cities have shown that the CDW Construction and Demolition Waste, in some cases, represent more than 50% of the mass of urban solid residue. Municipalities have struggled to manage in an effective way huge quantities of CDW generated every day and solve the problem of the illegal dumping in an inadequate area, which compromise the quality of life of the population as a whole, thus causing serious problems concerning social-environmental and sanitary. This paperwork was meant it carry out environmental diagnosis of the management and the final destination of the CDW in the city of Parnamirim/RN. The methodology used in this work constituted in the bibliographical research, conducted to give support and fundaments to the subject in question, identification of the main places of legal and illegal dumping, identification of the environmental impacts caused by the irregular deposition of the CDW, valuation of quantity and quality of the CDW and perception according to the Environmental Legislation. The necessary data for the elaboration of this study were carried out through the appliance of questionnaires with open and closed questions, applied to 14 (fourteen) Real Estate developer companies associated with SINDUSCON/RN and 05 companies that deal with the transportation and collection of CDW, formal and informal interviews, exploitational visits and photographical records. The collected data went through a statistic treatment being organized into tables and graphs. The main results obtained from this research show that the interviewees hold a medium knowledge of the specific Environmental Legislation; do not have an effective model of environmental management, resorting to only reusing CDW; that the reusing of CDW is not substantial, as much as the possibility of recycling has a minimal consideration. It was also verified that a considerable percentage of interviewees affirmed to send CDW to illegal and inadequate locations. It is expected that such study can be used as an important tool to subsidize the public administration in the pursuit of solutions which could bring benefits to society and the environment

Proposta de um modelo de medição e avaliação de desempenho como ferramenta de gest ão - um estudo de caso num órgão público

The public sector performance has received much attention in the literature and due to that the purpose of this work is to develop a proposal for a model of performance measurement for a higher education institution unit. First, we performed a theoretical research on public organizations and private institutions of higher education, followed by a literature review on performance measurement and evaluation. This review presents some performance models that are quite frequent in the literature: Total Quality Management (Total Quality Management) - TQM and the PDCA cycle, SMART System, Balanced Scorecard and Môdef Ouanturn. In order to verify the possibility of implementing a performance measurement model for Higher Education Institutions, it was conducted a case study in a support unit of a University, located in the city of Natal, RN, Brazil. The study attempted to identify the key processes of the unit and proposed by the use of Quantum model in order to improve the management and operation of the same. The work aims to contribute to the advancement of knowledge in measurement and performance evaluation in higher education institutions that where still lacks scientific production of this subject compared to other areas. This study also identifies better practices and opportunities for improvement in processes to determine the expected performance indicators to aid a decision-making unit.

Avaliação do desenvolvimento sustentável na bacia hidrográfica do Rio Seridó em face das políticas públicas e da gestão dos recursos hídricos

The reality of water resources management in semiarid regions, such as the Seridó region, has been shaped by a complex chain involving social-cultural, political, economic and environmental aspects, covering different spheres of activity - from local to federal. Because water is a scarce element, the most rational way pointed out by our recent history has been to move towards an increasing emphasis on the need for a truly rational, integrated, sustainable and participatory water resources management, supported by legislation and by a network of institutions that could materialize it. In this sense, despite all the advances in the formulation of public policies in water resources, which ones have indeed lead to significant changes that have occurred or are underway in semiarid regions such as Seridó? What factors may be preventing the realization of the desires rationality embedded in the framers of water policies intents? How to properly manage water resources if the current actors who promote their management and the political, human, cultural and institutional processes that intervene in this management, show strong traces of unsustainability? The research methodology adopted in this paper led to a breakdown of the traditional approach to water resource management, to integrate it into other areas of knowledge, especially to political science and public administration, catalyzed by the concept of "sustainable development". From a broad, interdisciplinary literature review, an exhaustive characterization of the river basin Seridó, a set of interviews with key people in the public administration acting in the region, a series of diagnoses and a set of propositions were made in order to correct the direction of current public policies for the region. From the point of view of public policies, it is in the deployment phase, not in its formulation, which lies a major problem of the lack of significant progress in water management. The lack of coordination between government programs are well characterized, as well as the lack of efficiency and effectiveness of their actions. The causes of this secular model are also discussed, including political factors and social relations of production, which led to a stalemate difficult, but of possible solution. It can be perceived there is a scenario of progressive deterioration of natural resources of the fragile ecosystem and a network of environmental and social consequences difficult to reverse, the result of a persistent and inertial sociopolitical culture, whose main factors reinforce itself. The work leads towards a characterization of the water resources management also from the perspective of environmental, institutional, political and human sustainability , the latter being identified, particularly as investment in the development of people as autonomous beings - not based in ideological directives of any kind - in the emancipation of the traditional figure of the poor man of the hinterland" to the "catalyst for change" responsible for their own decisions or omissions, based upon an education for free-thinking that brings each one as co-responsible epicenter of (self-) sustainable changes in their midst

Gestão de estoques: uma proposta de reposição contínua para material médico hospitalar e medicamentos em um hospital universitário federal do estado do Rio Grande do Norte

The inventory management in hospitals is of paramount importance, since the supply materials and drugs interruption can cause irreparable damage to human lives while excess inventories involves immobilization of capital. Hospitals should use techniques of inventory management to perform replenishment in shorter and shorter intervals, in order to reduce inventories and fixed assets and meet citizens requirements properly. The inventory management can be an even bigger problem for public hospitals, which have restrictions on the use of resources and decisionmaking structure more bureaucratized. Currently the University Hospital Onofre Lopes (HUOL) uses a periodic replacement policy for hospital medical supplies and medicines, which involves one moment surplus stock replenishment, the next out of stock items. This study aims to propose a system for continuous replenishment through order point for inventory of medical supplies and medicines to the hospital HUOL. Therefore, a literature review of Federal University Hospitals Management, Logistics, Inventory Management and Replenishment System in Hospitals was performed, emphasizing the demand forecast, classification or ABC curve and order point system. And also, policies of inventory management and the current proposal were described, dealing with profile of the mentioned institution, the current policy of inventory management and simulation for continuous replenishment order point. For the simulation, the sample consisted of 102 and 44 items of medical and hospital drugs, respectively, selected using the ABC classification of inventory, prioritizing items of Class A, which contains the most relevant items in added value, representing 80 % of the financial value in 2012 fiscal year. Considering that it is a public organization, subject to the laws, we performed two simulations: the first, following the signs for inventory management of Instruction No. 205 (IN 205 ), from Secretary of Public Administration of the Presidency ( SEDAP / PR ), and the second, based on the literature specializing in inventory management hospital. The results of two simulations were compared to the current policy of replenishment system. Among these results are: an indication that the system for continuous replenishment reorder point based on IN 205 provides lower levels of safety stock and maximum stock, enables a 17% reduction in the amount spent for the full replenishment of inventories, in other words, decreasing capital assets, as well as reduction in stock quantity, also the simulation made from the literature has indicated parameters that prevent the application of this technique to all items of the sample. Hence, a change in inventory management of HUOL, with the application of the continuous replenishment according to IN 205, provides a significant reduction in acquisition costs of medical and hospital medicine

Desenvolvimento e implantação de um sistema de gestão de pedidos de informação endereçados à Universidade Federal do Rio Grande do Norte a partir do serviço de informações ao cidadão (E-SIC)

Among the numerous policy changes that the world has experienced in recent years, occupies a prominent place in the quest for greater transparency of public agencies. Transparency has been an important tool in the accountability of the State to promote greater participation of the society by providing information that was previously restricted knowledge of public agencies. Brazil, following this trend, promulgated in May 2012 the Access to Information Act that seeks to disclose the actions of the State at all levels, in all public administration agencies. On the same day of the enactment of the law is provided society with a site that is empowering citizens to make their requests for information to government agencies. The Federal University of Rio Grande do Norte, which at that time had no a tool to assist them in managing this demand. This project has the objective to describe, build and implement a solution to solve this problem using Design Science Research as methodology. As result, the solution built in this research became a new module of the institution s ERP became it capable to control the entire process, and will be helpful to others partners which use our system ERP

Maturidade em gerenciamento de projetos no contexto da gestão estratégica no setor público: análise na Secretaria de Estado da Tributação do Rio Grande do Norte

This paperwork attempts to measure the project management maturity in the State Department of Taxation in Rio Grande do Norte. Project management has shown to be a critical component to any organization success, as the projects are directly related to a set of activities resulting into organizational innovations such as products, services and processes; and its improvement is directly aligned with the strategic management. Methodologically, this paperwork uses both a quantitative and qualitative approach that will be applied to the coordinators, sub-coordinators, and directors of the Regional Offices of the State Department of Taxation. In the theoretical reference it is about the public management and analyzes the strategic management in contemporary public administration. Presents the maturity in project management is by discussing the main models: CMM, Capability Maturity Model; PMMM, Project Management Maturity Model; OPM3, Organization Project Maturity Model and the Prado-MMGP, Modelo de Maturidade em Gerenciamento de Projetos. From this analysis, considering attributes as an aid in taking strategic positioning, access to the model, possibility of benchmarking and continuous improvement, the Prado-MMGP model was the most appropriate for this research process. It has been proved that the State Department of Taxation shows a very low project management maturity level. Regarding the acceptance of the maturity dimensions by the State Department, it is still in an early developmental stage, as one of the dimensions showed a poor performance while the rest showed a regular one. In contrast with similar organizations, the maturity results have shown to be below the national average. The maturity assessment enables in the institution the implementation of a plan for institutional growth with the creation of sector strategic and project management

A percepção da fiscalização dos contratos de mão de obra terceirizada pelos agentes envolvidos nesse processo no âmbito da Universidade Federal do Rio Grande do Norte: uma análise sob o modelo do principal-agente

Outsourcing has emerged as one of the new ways of guiding the work. For its advantages and be consistent with the paradigms of managerial reform, outsourcing also started to be used in the Public Administration. However, taking into account the particularities of the latter, some issues are relevant when outsourcing concluded with the State. Gains notoriety, for example, the step of monitoring these contracts, to the extent that, from this activity, we can avoid the negative effects of outsourcing like the fact that the state will pay for labor and wage liens that are obligation of the company providing the services. This study aims to understand the perception that this process is under the Federal University of Rio Grande do Norte, from the point of view of different stakeholders, also explaining the motivations that these agents have to perform the supervisory process. As a theoretical basis was used the Agency Theory, which reinforces the supervisory activities as a necessary means to minimize moral hazard and adverse selection, seeking to understand not only the different motivations tax contracts to properly perform their duties, but also analyze other phenomena arising from this contractual relationship. To achieve the proposed objectives, were taken a literature review and a presentation of how to organize the management and oversight of contracts in UFRN. The methodological procedures included questionnaires and interviews with those involved in the process. After analyzing the results obtained in the survey instruments , and also based on the laws, regulations and instructions governing the procurement process within the UFRN, it was concluded that the process of overseeing the outsourcing of labor contracts in UFRN is not fully institutionalized, some points should be strengthened in order to have the consolidation of this process, highlighting the need for training of UFRN servers that act as tax, the knowledge that the contractual penalties are applied effectively, the need that there is a supervisor of tax of contractors and also the realization of the rotation system of outsourced employees

Apoiando a construção de testes de aceitação automatizados a partir da especificação de requisitos

Automation has become increasingly necessary during the software test process due to the high cost and time associated with such activity. Some tools have been proposed to automate the execution of Acceptance Tests in Web applications. However, many of them have important limitations such as the strong dependence on the structure of the HTML pages and the need of manual valuing of the test cases. In this work, we present a language for specifying acceptance test scenarios for Web applications called IFL4TCG and a tool that allows the generation of test cases from these scenarios. The proposed language supports the criterion of Equivalence Classes Partition and the tool allows the generation of test cases that meet different combination strategies (i.e., Each-Choice, Base-Choice and All Combinations). In order to evaluate the effectiveness of the proposed solution, we used the language and the associated tool for designing and executing Acceptance Tests on a module of Sistema Unificado de Administração Pública (SUAP) of Instituto Federal Rio Grande do Norte (IFRN). Four Systems Analysts and one Computer Technician, which work as developers of the that system, participated in the evaluation. Preliminary results showed that IFL4TCG can actually help to detect defects in Web applications

Da polêmica sobre a pós-modernidade aos 'desafios' lyotardianos à Filosofia da Educação

As relações entre pós-modernidade e educação tem sido objeto de inúmeras pesquisas, bem como de certa polêmica no âmbito da Filosofia da Educação, a começar pela própria conceituação da pós-modernidade até chegar às posições filosóficas engendradas por ela. em quase todas essas pesquisas e polêmicas, A condição pós-moderna, de Jean François Lyotard, se configura como uma referência importante, porém raramente as obras subseqüentes a essa são mencionadas, deixando uma parte de seu legado filosófico de fora de tais discussões e, particularmente, de suas eventuais contribuições para a educação. Tendo em vista esse limiar dos estudos sobre o assunto, o presente artigo procura desenvolver uma interpretação acerca do pensamento lyotardiano, privilegiando a análise das obras subseqüentes ao seu livro mais polêmico, com o objetivo de situar o seu projeto filosófico para além de um marco da pós-modernidade e de discutir as suas contribuições à Filosofia da Educação na atualidade. Mediante tal interpretação, recupera-se um projeto filosófico que lança alguns 'desafios' à Filosofia da Educação referentes ao deslocamento de sua problemática epistemológica para a estética, nutrida por um pensamento capaz de elucidar a face complexa e obscura da educação, a sua sombra inumana, e o diferendo constitutivo do ensino, inapreensíveis pela linguagem e pela comunicação. Assim, esperamos que tal projeto possa ser compreendido não por aquilo que traz de polêmico à Filosofia da Educação, mas pelo que a desafia no tempo presente, como uma reescrita da modernidade.