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.

O direito social fundamental de acesso à energia elétrica e a atuação estatal

Electrical energy today is an essential element in the life of any human being. Through the access to electrical energy it is possible to enjoy dignified conditions of life, having in mind the possibility of making use of minimal material conditions of life. The lack of access to electricity is directly linked to poverty and degrading conditions of life, in which are some communities in Brazil, especially the more isolated from urban centers. Access to the electric service is a determining factor for the preservation of human dignity, constitutional principle inscribe in the art.1 of the Federal Constitution, and the promotion of development, being a right of everyone and a duty of the State to promote universal access. For that reason, focuses mainly on the analysis of their setting as a fundamental social right and its importance for national development. For this, the theoretical and descriptive method was used, with normative and literary analysis, in particular the Constitution of 1988. This study also discusses the form of action of the State in the energy sector, to give effect to the fundamental social right of access to electricity, the characteristics of public service and the principles that guide it, in addition to the role of public policies in universalization of access, in particular the analysis of the Program Luz para Todos, and the function of regulation in the implementation of these policies and the provision of adequate public services.

O princípio constitucional da eficiência aplicado à outorga e à cobrança da água produzida na exploração petrolífera

Water production is unavoidable during a petrol well s lifetime. The amount of produced water associated with oil varies a lot. It can reach values which account to 50% in volume up to nearly 100%, at the end of the well s economic life. It could be verified that, once the water reaches the productive wells, there must be a management of this produced water. Its destiny is defined after a precise study, after which the best option is chosen between relieving it into the environment, re-injecting it into the producing container or disposing it into non-producing formations. Whichever option is made by the involved professionals, after the necessary analysis, it shall consider, besides the technical and economical aspects, also the alternatives which entail less environmental impact. The purpose of the present research is to conduct a study about the application of the constitutional principle of efficiency on the instruments worked out by the public administration on water management, specifically the water use licence and charging for the use in the management of water resources applicable to water production at the petrol wells. In this attempt, before entering the proper approach of the efficiency of the mentioned instruments, it was necessary not only bring to light the doctrinal perception about the constitutional principle of administrative efficiency, but also make some considerations concerning to the structure of the national water resources management, set by the Federal Constitution (1988) and the federal legislation (9433/97)

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

Os conflitos de competência normativa do estado regulador brasileiro no setor administrado pela ANP

The dissertation has by objective describe the administrative activity of regulation exercised by independent regulatory agencies, observing that this activity was already done before this structures creation, however, after a really deep administrative reform that had as objective built a Public Administration with more efficiency, it passed to be done with some own peculiarities of these new structures of regulation. The work gave especial attention to what concern the conflicts of normative competency that really often happen between ANP (Agência Nacional do Petróleo, Gás Natural e Biocombustíveis) and the legislatives organs of the Republic Federative of Brazil, because energetic area has unbelievable mater to any country, and the fact of some juridical norm be against the law and be accepted is very dangerous, it affronts the constitutional principle of the legality e may put in risk the democratic Estate of law, them, regulatory dogmatic must be scientifically knows, and developed, thought and especially there are so many doctrinaires divergences about regulation constitutionality. As a theorist point, the investigation got the Logical nocontradiction principle, according Hans Kelsen and Lourival Vilanova thought, doing a philosophical reflection about the system of positive law, in which there are many antinomies, or conflicts of norms, what include the conflicts of the administrative acts expedited by ANP and the legislation of the brazilian regulatory Estate. For a better understanding and exemplify some perplexities treated by the doctrinaire angle, this work did a lucubration about a possibility of a normative conflict between a ANP resolution and the municipal legislation in a specific case, also, brought several jurisprudences for the brazilians courts of justice, that confirm the empiric existence of normative conflicts among ANP s administrative norms and federal legislation. Finally, concludes observing that the regulation is not a legislative competency delegation to regulatory agencies, is just a new exercise of the administrative function, it is a technical specialization of the public administration, that using this know-how can acting with more efficiency, however the normative power of regulatory agencies must respect the empire of law, so in this terms, the dissertation suggests the ponderation of the constitutionals principles of efficiency and legality how form to harmonizing the democratic legitimate inherent to legal norm supremacy, with the perspective of an efficient economic and institutional development

O desafio constitucional da distribuição dos royalties de petróleo da bacia pré-sal para promoção de políticas públicas

The administrative model of the Brazilian State, based on regulation, strives, with the application of the efficiency principle and assessment of economical costs, to give a greater effectiveness to fundamental rights by implementing public policies.The objective of this work is to analyze the role of Oil royalties in the context of the Brazilian State, considering that, being an income gap, they might work as a device that promotes intra/intergenerational justice. By means of a correct and efficient distribution and application in the national region, the royalties constitute financial resources available for implementing public policies that intend to guarantee the fundamental rights; above all, with the discovery of the Pre-salt basin and the indisputable rise in the tax revenues arising from Oil exploration. In the making of this work, the theoretical-descriptive methodology is observed, grounded in a critical-reflexive analysis about Constitutional Law and Oil Law. This work analyzes the administrative model of the Brazilian State, the theory of costs of fundamental rights and the theoretical aspects about royalties, such as: the ethical and economical fundamentals, the distribution and destination of revenues, considering the oil exploration scenario before and after the discovery of the pre-salt basin. it is verified, with the present work, the importance of the creation of a new regulatory framework, and consequently the creation of a sovereign wealth fund, which arises to re-evaluate the application of the current norms of Oil revenue distribution. Still, it is imperative that the mechanisms for controlling the application of royalties are defined in detail, so that those can fully admit the objectives of intra/intergenerational justice. Furthermore, it is emphasized that this process should develop from the efficiency principle viewpoint, as well as the principle of reducing social and regional differences, given that the Oil revenues might be used to ensure fundamental social rights, by implementing public policies that are aligned with the development recommended by the Federal Constitution

Licenciamento ambiental em postos de revenda de combustíveis à luz dos princípios constitucionais de defesas do meio ambiente: o caso do município de Natal/RN

This study approaches the question of the administrative procedure of the environmental licensing of ranks of fuel resale, taking as basis a study case of the reality of the City of Natal/RN (Brazil). For in such a way, it was done a retrospect on the evolution of the system of road transport in Brazil, having started to briefly analyze the urbanization process that if after accented in the capitals of the Brazilian States the decade of 1950, relating these subjects with the growth of the sector of fuel resale. After that, it was transferred boarding of the defense of the national environment to the light of ambient principles constitutional. In the sequence, a boarding on the ambient guardianship in the Federal Constitution of 1988 was made, treating basically specifies and on the national urban politics and the national politics of the environment, with its instruments. In the sequence, it was transferred the analysis of the abilities and attributions of the National Advice of the Environment (CONAMA) and its Resolutions, for then only enter in the most important part of this work: an analysis of the environmental licensing of ranks of fuel resale, in the reality of the City of Natal/RN. Before this specific boarding, it was proceeded specifically a survey and communication from the applicable norms to such establishments (Resolutions of the CONAMA and norms of the ABNT), for after that carrying through an geo-ambient characterization of the City of Natal/RN. Finally, a reflection was made on the possibility of magnifying of the state activity, in terms of guarantees for the responsible members for the environmental policy and of administrative efficiency, through the idea of the ambient regulation. For the accomplishment of this study, it was proceeded research in diverse sources such as books, magazines, sites of the Internet, periodicals, thesis and dissertations, among others material, beyond visits the agencies that direct or indirectly act with the ambient defense and as fuel resale, such as Secretariat of Environment and Urbanism of the City of Natal (SEMURB), Institute of Economic Development and Environment of RN (IDEMA), Brazilian Institute of the Environment and the Natural resources You renewed, Executive Management of RN (IBAMA/RN), Public prosecutor's office of the Environment of Natal (Public prosecution service of the RN), National Agency of Oil (ANP) and Union of the Retailing of Derivatives of Oil of the RN, among others. To the end, satiated regulation is observed that although on the substance of the ambient licensing in ranks of fuel resale, also with federal, state and municipal norms, the municipal Public Power is very far from the fulfilment of its institutional functions, in the question environmental policy of these establishments, a time that few are the permitted ranks of resale in the city of Natal/RN

Novas fronteiras petrolíferas no Brasil : uma análise da necessidade de nova regulamentação da área do pré-sal sob a ótica constitucional

The Oil industry in Brazil has gone through several stages during the economical, political and social historical process. However, the significative changes have happened in the last fifteen years, due to market opening arising from the relaxation of the state monopoly over the Oil deposits and its derivatives. The edition of the Constitutional Amendment #9, changing the first paragraph of the 177th item of the Federal Constitution, marked the end of a stiffness about the monopoly that the Brazilian state kept in relation to the exploration and research of Oil and Gas. The economical order was fundamental to actualize the idea contained in the #9 Amendment, since its contents has the power to set up measures to be adopted by public power in order to organize the economical relations from a social viewpoint. The new brazilian Oil scenery, called pre-salt, presents itself in a way to amaze the economical markets, in addition to creating a new perspective to the social sector. This work will identify, in this new scenario, the need for change in the legal system. Nevertheless, this subject must not be treated in a thoughtless way: being an exhaustible good, we shall not forget that the future generations also must benefit from the exploration of natural resources recently discovered. The settlement of a new regulatory mark, including the change in the concession contract model to production and sharing is one of the suggested solutions as a bill in the National Congress, in an attempt to ensure the sovereignty of the nation. The constitutionality of a new regulatory mark is questioned, starting from an analysis of the state monopoly, grounding the comprehnsions in the brazilian constitutions, the relevance of the creation of Petrobras for self-assertion of the state about the monopoly of Oil and derivatives, and its posture after the Constitutional Amendment nº 9 (1995), when a company stops having control of the state monopoly, beginning to compete in a fairly way with other companies. The market opening and private initiative are emphasized from the viewpoint of the Constitutional Principles of the Economical and Social Order. The relaxation of the monopoly regarding the exploratory activity in the Federal Constitution doesn't deprive from the Union the ownerships of underground goods, enabling to this federal entity to contract, directly or by concession of exploration of goods, to state-owned or private companies. The existing oil in the pre-salt layer transforms the scenario from very high risk to low risk, which gives the Union the possibility of defining another way of exploring this resources in the best interests of the Public Administration

O município brasileiro e o direito fundamental do acesso à justiça: a prestação da assistência jurídica municipal ao necessitado

This scholarly work aims to investigate the feasibility and constitutionality of access to justice through the provision of full and free legal assistance by the Brazilian municipalities. Investigates the historical aspects of federalism in a global context, emphasizing the contributions left by American federalism. In the Brazilian context, emphasizing the importance of municipalities as federal entities and their outstanding characteristics, while addressing regional issues of federalism. Leanings to the more detailed analysis of the Brazilian municipalities, contextualizing its legal status, its independence and its constitutional powers. It is emphasized in the same way, the relevant transformations of Brazilian municipalities over the last twenty years of this Constitution of the Federative Republic of Brazil in 1988, especially the various constitutional amendments that affected the local autonomy and budgetary aspects, fiscal and skills, bringing significant changes to the municipalities. It is an approach to the concept of justice and deepening the studies on the fundamental right of access to justice in its various connotations. In this vein, it is a study on the legal advice provided in Brazil, especially the powers of the Public Defender of the States and Union, as well as the provision of such public service by Brazilian municipalities and its relevance to citizens in need. At this point, it deepens the relevance of the theme of this dissertation earning the implications of municipal performance in the provision of legal assistance provided to the needy, and the activity of the Municipal Attorney or legal counsel in conducting such a task and its implications for legal and procedural especially on the constitutionality or otherwise of the conduct of such public service, confronting the constitutional articles that are correlated with the subject. Within this context, evaluates the municipal legal assistance under the test of constitutionality, in particular the assistance given by the Executive, through the Municipal Attorney or specialized secretariats and that provided by the Legislature, although it only has the typical functions of legislating and control the municipal accounts, comes in a few municipalities in Brazil deploying sectors with the performance of legal services to the needy. At this point the thesis, one wonders if some important aspects of this activity such as political influence and patronage, very common in day-to-day municipal prosecutors and legal advisers, public employees or occupying commissioned positions within the municipal administrative structure in several municipalities throughout Brazil. Finally, there will be a conclusion as to the constitutionality of the service being done by presenting proposals and recommendations that may improve the municipal legal aid, allowing a constitutional backing to this important service is being provided in capital cities and municipalities throughout the length of Brazil

Federealismo e desenvolvimento: cooperação entre os entes federados limites, direitos e deveres

Taking as a starting point the Classic Federalism and theory of the development this Work intend to present some ideas linked about cooperation between federal entities and intergovernmental relations with the main focus the regulation by the Public Consortia aimed at administrative efficiency as a Constitutional Principle of Activity Administrative, against the current provisions of the Federal Constituition of 1988, and infraconstitutional legislation in order to provoke debate and criticism about the principle of cooperation adopted as a paradigm and the capabilities that the state has and what it is, in fact, an efficient management public. It is in the growth of the state, and not a decrease as a minimal state, which aims to discuss its role in promoting the collective interests, and it is therefore essential, as an institution able to intervene on citizens in the search for socially relevant results. Study Federalism and Development on the premise of public consortia and administrative efficiency requires study the course of history as the formation of the Brazilian State, in particular the fact that he is in joint effort between federal agencies - federal, state and municipal - in order to better review the relations established in this plan, in what concerns directly on the issue of division of powers, especially the common or competitors and the subject of the highest relevance for the implementation of an effective federal pact. Finally, the objective of this Work is not only particularize the institute of public consortia, it is intended to demonstrate the deviousness of the concept of efficiency and the division of powers of federal agencies and the constitutional contribution of the institute as a program that should be put in a tone of debate, adequacy of the practice and the law itself

Federalismo cooperativo e o exercício da competência administrativa ambiental

This paper aims to discuss the conflicts of competence in environmental matters, as well as the legitimacy of the normative acts in the exercise of jurisdiction effected environmental management. For this work, addresses the issue of federalism, North American (dual) and German (cooperative), deepening its historical and theoretical fundamentals, as well as the influences on the evolution of the ideological matrix of Brazilian federalism. Distinguishes itself around the problem the theoretical and abstract discussion involving the constitutional division of powers, and the issue of his relationship with the vicissitudes in the embracement of environmental matters that invariably leads to mistakes in the exercise of jurisdiction environmental management. Its highlight the existence of a framework environmental law, embodying the principles themselves as well as a specific object of authority, which qualifies a different interpretation of the rules of constitutional powers as well as influencing the acting agent of government in managing the public good environment. The study represents an exploratory research as it investigates the depths of the institutes are in evidence not only with satisfying its practical outcome. For this to happen, explores bibliographical sources and identified by the science of law as more important, as the search for social-political boundary which takes the issue studied in their historical and contextual materiality, whose study is essential for a complete understanding of the topic . The dialectic that arguments have been constructed throughout the monograph, attempts to pass a critical way to expose the author's ideas, which considers as essential in the arrival of new questions

A Constitucionalidade do decreto de licitações da Petrobrás à luz dos princípios da legalidade e da eficiência

PETROBRAS, a Brazilian oil company, follows principles of public administration and from the Constitutional Amendment 9/95 in Brazil began to compete with other companies with the flexibility of the oil monopoly. In this new model started to use the simplified procedure for bidding so that could compete on equal terms. The ordinance that adopted a simplified procedure for bidding has been the subject of some criticism and lawsuits especially under the Court of Audit and the Supreme Court in Brazil. The analysis of their constitutionality, and the possibility of their use by other group companies is the theme of this work, and for this purpose, permeates through the notions of judicial review in the Brazilian law on the stage of law and economics analysis of the norm, and the principles applicable to PETROBRAS and the devices most frequently asked about the implementation of 2745/98 Decree. For this, the basic issue that should be investigated further is the regulatory power of the Federal Executive and the delegation of powers within the legislature and its conformation to the constitutional regency

A moralidade e a vida pregressa do candidato como condição autônoma de elegibilidade

The objective of this work was about fixing the free will paradigm as negative evaluation of political rights which presents a new classification dde such rights, producing species: a) conditions of eligibility autonomous (free will), b) eligibility requirements heteronomous (will third party) and c) ineligibility (court decisions / administrative). This morality and life history as a condition of eligibility unattended, making a hermeneutic analysis of art. 14, § 9 of the Constitution, considering the justification of the views of the voting Minister Carlos Ayres Brito Appeal in Ordinary No 1069/2006 of the Supreme Electoral Tribunal (where Eurico Miranda). Are fixed concepts of morality and life history from the perspective of the moral act freely and consciously. Has resulted in the identification of the moral virtues of honesty and integrity, which are voluntary acts as a reference to morality and integrity respectively. Justifies the morality and life history as a condition of eligibility unattended. who depend exclusively on the willingness of the candidate. It is noteworthy that the conditions for eligibility as a factual finding does not violate the law and does not allow punitive sanctions or setting a deadline in case of refusal to register the application. Attributed to political parties to take responsibility in their statutes moral criteria for the nomination convention in pre candidates, giving an ethical dimension. Analyzes the law under the Clean Record of morality and life history of the candidate and the possible impact on the electoral context.

O serviço público de fornecimento de água nas regiões metropolitanas: cooperação entre entes da federação e desenvolvimento

This work aims to study the material conflict of jurisdiction as to the ownership of public water supply, between the municipalities and the Member States, in metropolitan areas. One of the important points of analysis is the realization of the fundamental right of access to water, a right that is implicit in the Constitution of 1988, being prevented from having their achievement considering the lack of definition of the ownership of the service. Knowing discussed the essential public service, in all its stages, it will realize it is a complex activity that depends for its operation, joint activities of federal entities and the society. In its pursuit of development (understood as better conditions of life), that in view of the Federal Law nº 11.445 of 2007 is the universal access to service, require the adoption of popular participation and the positive benefits of the state, such as planning. Moreover, it will find cooperation between federal entities (after the study of Brazilian federalism) peaceful solution to the conflict through the adoption of joint management or shared, depending on the factual situation and legal

Ativismo judicial e materialização das políticas públicas infanto-juvenis na constituição da república: Fixação de planos ideais de atuação para os atores do Sistema de Garantia de Direitos (SGD)

The research arose from the necessity of showing ways to be followed by the actors of the System Guaranteeing Rights of the Child and Adolescent (SGD), regarding the implementation of rights for young people, because the legislation in force in Brazil is currently considered a model around the world and, paradoxically, the fundamental rights of children and adolescents are not met, even with the constitutionally guaranteed priority. Thus, the study investigates the fundamentality rights for young people, enshrined in the Constitution of the Republic, as well as the ways of effectiveness of these rights through the actions of actors of the System Guaranteeing Rights, especially the judiciary. Focusing realized, studying theories of fundamental rights, especially Structuring a Theory of Law (Strukturiende Rechtslehre), Friedrich Müller, who emphasizes the need for analysis of social reality in the application of the rule of law. Study also the public budget and public policies concerning children and adolescents, with emphasis on preparation of budget laws and the process of discussion, deliberation, choice and implementation of public policies for children and teenagers. It then presents the typical functions of the members of System Guaranteeing Rights, as well as prepare a plan for optimum performance for each of the actors, with emphasis on analysis of the implementation of public policies at the municipal level. Finally, it analyzes the theory of separation of three powers, and discusses the positive and negative factors for judicial intervention, concluding that the Courts can consider the action activist, from finding the omission of the Executive and legislative branches, as regards the implementation of the rights of children and adolescents, as well as the rights of children and young people are not realized in most cases, due to the omission of actors of the System Guaranteeing Rights