A legitimidade da jurisdição de primeiro grau na concretização dos direitos fundamentais: proposta de um novo modelo jurídico-administrativo para o segundo grau de jurisdição

The current study is about the legitimacy of lower court jurisdiction as a way of exercising basic legal rights, proposing, therefore, a new legal-administrative model for appellate court. In order to achieve that, a demonstration of the importance of basic legal rights in the Brazilian legal system and an open interpretation in light of the Constitution, as a way to affirm said rights, among which are accessibility to the justice system and proper legal protection, is required. As a result, the legitimacy to access the legal system resides in the Constitution, where the interpreter should seek its basic principles to achieve basic legal rights. It is observed that the lack of credibility regarding lower court decisions comes from the dogmatic view of truth born from power, and therefore, that the truth resides in decisions from appellate court and not from lower court judges. A lower court judge holds a privileged position in providing basic legal rights for citizens, considering his close contact to the parties, the facts, and the evidences brought forth. Class action suit is presented as an important instrument able to lead the lower court judge to provide basic legal rights. Small Claims Courts may be used as paradigm to the creation of Appellate State Courts formed by lower court judges, reserving to higher jurisdiction courts and Federal Circuit Courts, the decisions of original competency and the management and institutional representation of the judiciary system. Instilling an internal democratization of the judiciary is also required, which means the participation of lower court judges in electing their peers to chief positions in the court system, as well as establishing a limited mandate to higher court judges.

Direito fundamental ao tempo razoável do processo judicial: limites e possibilidades de concretização no ordenamento jurídico pátrio

This dissertation aims to address the limits and possibilities of realizing the fundamental right to reasonable time of the Brazilian legal system process. From this perspective, we analyze a reasonable time concept for the process, consistent with the civil homeland process; the relationship between efficiency, effectiveness, legal security and reasonable time of adjudication; a formal recognition of the fundamental right to reasonable time of the procedure in the Constitution of 1988; and the immediate applicability of this fundamental right. As indicated, the crisis of the Judiciary and procedural delay are problems directly related to the limits and possibilities of realization of the fundamental right under study. Moreover, we also present some mechanisms that can be used to overcome these problems. The subject was developed based on constitutional interpretation of fundamental rights, an approach that will always have this concern to be based on a methodology which includes the normative and empirical-dogmatic fields, realizing the fundamental right to reasonable time of the process. We adopted as methodological approach the study of this issue in judicial aspect, more specifically in the field of civil procedure. Finally, we weave through a critical and analytical view, our conclusions, which demonstrate the possibilities of overcoming the limits imposed to immediate implementation of the fundamental right to reasonable time of the process in our legal system

A investigação criminal e a vedação ao anonimato no sistema jurídico brasileiro

The thesis, prepared with basis on deductive reasoning (through the utilization of general concepts of the fundamental rights theory) and on inductive logic (by means of the consideration of particular situations in which the theme has been approached) deals with the criminal investigation and the prohibition of anonymity in the Brazilian law system. The state criminal investigation activity presents not only a substantial constitutional basis, due to the objective dimension of fundamental rights (which imposes an obligation to protect these essential values), but also a formal constitutional basis, arising from the administrative principles of rule of law, morality and efficiency, referred to in article 37 of the Constitution. The criminal investigation, however, is not an unlimited pursuit, being restrained by the duty to consider fundamental rights that oppose to its realization. One of the limits of the state investigation activity, in the Brazilian law system, is the prohibition of anonymity, referred to in article 5°, IV, of the Constitution. This prohibition is a direct constitutional restriction to the freedom of expression that aims to ensure the credibility of the diffusion of ideas and prevent the abusive exercise of this fundamental right, which could harm both persons and the state, with no possibility of punishment to the offending party. Generally, based on this prohibition, it is affirmed that a criminal investigation cannot begin and progress founded on anonymous communication of crimes. Informations about crimes to the investigative authorities require the correct identification of the stakeholders. Therefore, it is sustained that the prohibition of anonymity also comprehends the prohibition of utilization of pseudonyms and heteronyms. The main purpose of this essay is to recognize the limits and possibilities in starting and conducting criminal investigations based on communication of crimes made by unidentified persons, behind the veil of anonymity or hidden by pseudonyms or heteronyms. Although the prohibition of article 5°, IV, of the Constitution is not submitted to direct or indirect constitutional restrictions, this impediment can be object of mitigation in certain cases, in attention to the constitutional values that support state investigation. The pertinence analysis of the restrictions to the constitutional anonymity prohibition must consider the proportionality, integrated by the partial elements of adequacy, necessity and strict sense proportionality. The criminal investigation is a means to achieve a purpose, the protection of fundamental rights, because the disclosure of facts, through the investigatory activity, gives rise to the accomplishment of measures in order to prevent or punish the violations eventually verified. So, the start and the development of the state criminal investigation activity, based on a crime communication carried out by an unidentified person, will depend on the demonstration that the setting up and continuity of an investigation procedure, in each case, are an adequate, necessary and (in a strict sense) proportional means to the protection of fundamental rights

A eficácia, no ordenamento jurídico brasileiro, da responsabilização penal da pessoa jurídica pela prática de crimes ambientais

The environment, which fundamental importance has already been recognized in all the world, is an actual national and international discussion subject, whose interest grows for the society, and consequently to the Law, in order to prevent the natural resources to the present and future generations. The 1988 Brazilian Constitution, recognizing the importance of the environment, treated about it in many of its parts, even dedicating a specific chapter (Chapter V About Environment, inserted in Title VIII About Social Order). The brazilian constitutional text established to everyone the fundamental right of enjoying an equilibrated environment, obligating the State and all society to defend and preserve the environment to the present and future generations. The economic growing process, that predominated and still persist in the big majority of the countries, where is practiced the capitalist system, has in the enterprises (legal persons) one of its main actors. Many times, these enterprises, especially in the actual globalized world in where we live, where the gain of money is priorized, ends, at the moment they act, making damages to the environment. These damages are, many times, considered by the law. crimes against the environment. The 1988 Brazilian Constitution, according to the Modern Criminal Law, realizing that many crimes were being committed by the enterprises, established in article 225, §3rd, the criminal responsibility of the legal persons. Almost ten years after the 1988 Brazilian Constitution, was published the Law number 9.605/98, in which third article established the penal responsibility of the legal persons that practice crimes against the environment, without excluding the individual responsibility

Análise textual dos discursos: responsabilidade enunciativa no texto jurídico

This investigation aims at describing, analyzing and interpreting the Commitment in Initial Petitions, which is a genre circumscribed in the judicial domain. For this purpose, we have chosen sections, facts as found and relevant law , sections of the petition, with the understanding that, in this way, respectively, the narration of events, which gives margin to the propositioning to the judicial action, and the exposition of the law that upholds the author s intention. We base our discussion on the field of Linguistics, more precisely, Textual Discourse Analysis (TDA), whose theoretical basis is derived from Textual Linguistics (TL) and Enunciative Linguistics. We foreground, particularly, the way in which the author of texts, objects of analysis, use discursive strategies that evidence ER. The relevance of this study, then, is in the formation of a critique of the judicial text, as it conceives of a dialogical approach to the point of view, raising not only questions about the way in which a linguistic instance conceives an object of discourse, but also considering questions of language inherent to technical writing and, in this aspect, contributing to the work of those operating in Law about the many ways ER is formed in the body of a petition. We selected two categories to analyze that, according to Adam (2011), characterize the degree of ER in the textual material of the propositional enunciations: the different types of representation of speech and the indications of profile of mediators. In this sense, with this task as an objective, we base our study regarding point of view on Rabatel (2003, 2009a, 2010) with relation to the enunciative approach, including the study of PDV in polyphonic and dialogical theoretical framework to study the ER from different types of speech representations that conceive forms of transmission of discourse and the role of the enunciating subject, mainly the responsibility and the prerogative by the propositional contents. In the same way, intending to study the indications of the mediator profiles, we observed the postulations of Guentchéva (1994, 1996), which develop the notion of mediative grammatical categories, of which permit the linguistic marking of distance and engagement of the enunciator with regard to the information expressed. The methodology we adopted was based on qualitative research, of an interpretive and introspective nature, in light of the fact that his study focuses on processes and strategies underlying language use. The corpus of the research is comprised of Initial Petitions, which gave rise to actions originating in the Civil Court of Currais Novos County RN. The data analysis shows that an object of discourse is always perspective oriented and presents the point of view of one or more enunciators. Consequently, the producer of a text, using the PDV of other enunciators, influences and establishes the argumentative orientation of the text. In the same way, it evidences the relevance of the use of mediated constructions in the judicial text, as they function as strategies attenuated to the responsibility of the producer of the text with what is said, and at the same time points to a discourse of authority through the entrance of the sources of law. Moreover, it reveals the documental and international importance of this practice, at the same time that it exposes the compositional and normative difficulties with regard to legal and linguistic aspects

Bienestar y estar bien: un enfoque renovado de la cohesión social en América Latina

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Guía práctica de solución de diferencias en la OMC

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Informe marco jurídico nacional e internacional sobre inversión extranjera directa en Chile

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Cláusulas ambientales y de inversión extranjera directa en los tratados de libre comercio suscritos por México y Chile

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Hacia la igualdad de la mujer: avances legales desde la aprobación de la Convención sobre la Eliminación de Todas las Formas de Discriminación Contra la Mujer = Towards equality for women: progress in legislation since the adoption of the Convention on the Elimination of All Forms of Discrimination Against Women

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La consideración de la información en el marco jurídico, la institucionalidad y las políticas para las personas con discapacidad en América Latina

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Las personas con discapacidad en América Latina: del reconocimiento jurídico a la desigualdad real

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El régimen jurídico de la planificación en América Latina

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