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

Efetividade dos direitos trabalhistas e os princípios constitucionais concretizadores da proteção laboral

The Brazilian Constitution aims to regularize the broadest possible the fundamental grounded in the value and supreme principle of human dignity, supporting a Democratic State of Law, to essentially give basic rights to all for a dignified existence. As the result of a historical development, fundamental rights incorporated by legal order represents a real reaction against acts that ignored the dignity of each person in one of these scenarios, especially inserted into the labor relationship, the principle of protection comes to balance and compose such relationship between employers and workers, raising this principle as axiological essence of this subject, based especially on the protection and guarantee of fundamental rights of the worker. For this study, was developed a literature research using books, legislation, legal websites and articles related to the subject, in order to analyze the principle of protection insert in the legal order, properly authoritative on the principle of equality, the social value of the work of human dignity to confer protection to the most vulnerable and admittedly weak of the labor relationship in order to serve the specific regulations legal practical tools and effective protection, against the employer hierarchical power and steering that can not change into abuses and attacks on the fundamental rights of the worker. In conclusion, is not enough, recognizing the vulnerability of the worker, it is necessary to carry out protective legal instruments in line with the the human dignity, consectário logical fundamental rights of workers, to be held in a proportional manner and sometimes flexible, depending on the case. Protection has a beginning and end to ensure that the human dignity that must presuppose a working relationship achieved by orderly and normative power of constitutional norms, with the aim of designing that labor is not an end in itself, but a means to the achievement of the economic advancement by promoting social development and providing necessary support for the increasingly marked impairment of fundamental rights of the worker

Nacionalização do trabalho e constituição: análise das regras de nacionalização do trabalho à luz do princípio da isonomia

There is a clear relationship between citizenship and labor market. While foreign nationals are equal in dignity and rights in the laws governing the employment of this labor force. Motivated by reasons of state security or political direction, such laws to a greater or lesser degree, create establish a system of worker protection in the face of the foreign national. These rules have a direct impact on economic regulation, as they can affect the supply of skilled labor or not, articulating with the economic order envisaged by the 1988 Constitution. The Constitution adopts several principles in its economic order, so that the issues involving the rules of the nationalization of all work must be considered in a systematic way, one can not choose a pleasure interpreter. The nationalization of the work rules are not unique to Brazil, similar rules exist in several countries of South America and Africa. In Europe they already existed, but lost out on the basis of treaties setting up the European Union, although other mechanisms are used for the purpose of protecting the citizens of the member states, making policies equal treatment legislation symbolic. The nationalization of the work rules governing the relationship between nationality and the labor market and are in a legal category, which has a function to fulfill in the Brazilian legal system. Not all rules nationalization violate the principle of equality, as it is possible, depending on the circumstance indeed adopt a criterion that implies differentiation between nationals and foreigners. The Constitution has a will arising from its normative force, so that the assumptions it (constitution) used to discriminate may also be possible by ordinary legislation, since the situation is actually justifiably constitutional

Saída compulsória do estrangeiro do território nacional à luz dos direitos humanos: análise de casos

This paper aims to review traditional concepts inherent to the general theory of the state and human rights, relating to the legal situation of foreign, understood as the subject of rights, especially when the is case of compulsory legal imposition of exit from national territory. After the serious violations during the Second World War and the importance acquired by the International Law of Human Rights, values as dignity, justice and equality are enshrined in the legal system and its respect required beyond the boundaries of any country. The creation of an international community, which is governed by rules that its members are subordinated, without distinction, as well as state - based on volunteerism, become inspired by one principled nature of these new concepts required of Global Society, as well as the adoption, influenced by neoconstitutionalism, to the model of State Constitutional rule of law, are opposed to the idea of state sovereignty connected to a superiority, absolute and unlimited power which recognizes no other above it, not even the basic principles or axioms that must govern the relationships internally. So looks for a concept of state that includes all the requirements of a democratic society, that have the people as the power holder, understanding that state element has undergone a relativization, because had to adapt to the contemporary values applicable to the individual, inserting in its concept, the indispensable obligation to protect the inalienable rights of citizens, regardless of with whom he have legal and political bond of nationality. It happens that, to consecrate these privileges to individuals, which, because they contain reference to values with supranational characteristics, are very abstract and are in constant collision course with internal rules, making it difficult to reconcile, it will use hermeneutics of human rights, due mainly to international courts, correlated with constitutional exegesis, in particular, legal principiologia, using, among others, the principles of reasonableness and proportionality, the systematic interpretation of the Constitution and international legal standards. Thus, it seek to enshrine the common foundation of all law , the link between the systems, namely, the dignity of human beings. Finally, it will see if Brazilian jurisdiction, through case studies, is tuned in line with these new paradigms, and in line with the International Bill of Human Rights, the Federal Constitution, the values and principles she hired

A contribuição de Diké na formação do Emílio ou o papel da jurisdição constitucional na concretização do direito social à educação

The fundamental social right to education has a lengthy constitutional argument, having been declared as a right to everyone in the Title dedicated to the fundamental rights and warrants and, later, scrutinized in the Social Order Chapter exclusively devoted to this theme, where specific rights are guaranteed and fundamental duties are imposed to family, society, and state. In that which concerns education, the 1988 Constitution is the result of a historical-normative process which, since the days of the Lusitanian Empire wavering between distinct levels of protection warrants in some way the educational process. Nevertheless, not even the State s oldest commitment to education has been fully achieved, namely, the annihilation of illiteracy. Even as other fundamental social rights, education is inflicted with the lack of effective political will to reach its fulfillment, and this is reflected in the production of doctrine and jurisprudence which reduce the efficacy of these rights. The objective of this work is to analyze what part is to be played by the constitutional jurisdiction in the reversal of this picture in regards to the fulfillment of the fundamental social right to education. Therefore it is indispensable to present a proper conception of constitutional jurisdiction its objectives, boundaries and procedures and that of the social rights in the Brazilian context so as to establish its relationship from the prism of the right to education. The main existing obstacles to the effective action of constitutional jurisdiction on the ground of social rights are identified and then proposals so as to overcome them are presented. The contemplative and constructive importance of education in the shaping of the individual as well as its instrumental relevance to the achievement of the democratic ideal through the means of the shaping of the citizen is taken into account. The historical context which leads to the current Brazilian educational system is analyzed, tracing the normative area and the essential content of the fundamental right to education aiming to delineate parameters for the adequate development of the constitutional jurisdiction in the field. This jurisdiction must be neither larger nor narrower than that which has been determined by the Constitution itself. Its activity has been in turns based on a demagogic rhetoric of those fundamental rights which present a doubtful applicability, or falling short of that which has been established showing an excessive reverence to the constituent powers. It is necessary to establish dogmatic parameters for a good action of this important tool of constitutional democracy, notably in regards to the fundamental social right to education, for the sake of its instrumental role in the achievement of the democratic ideals of liberty and equality

Liberdade de expressão artística: concepções filosóficas, fundamentalidade constitucional e política da pluralidade

The right to artistic expression, freedom granted in the western democratic constitutionalism, is a fundamental right that cyclically, compared to other cohesive rights of expression, has been forgotten and put in an irrelevant juridical-dogmatic position. The first reason for this behaviour that disesteems artistic freedom is the valorisation of rationalism and scientificism in the modern society, subordinating academic researches to utilitarianism, relegating the purpose of feelings and spirituality on men s elocution, therefore, we investigate, guided by philosophy, the attribution of art on human formation, due to its capacity in harmonising reason and emotion. After that, we affirm the fundamental right to artistic expression s autonomy in the 1988 valid constitutional order, after a comparative explanation of freedom in the Fundamental Laws of United States, Portugal, Spain and Germany; and the construction historic-constitutional of the same right in the Brazilian Constitutions. In this desiderate, the theoric mark chosen is the Liberal Theory of the fundamental rights, guiding the exam through jusfundamental dimensions: juridical-subjective and juridical-objective. Whilst the first, classical function of resistance, delimitates the protection area of the artistic expression right from its specific content, titularity and its constitutional and subconstitutional limits, the other one establishes it as cultural good of the Social Order, defining to the State its rendering duties of protection, formation and cultural promotion. We do not admit artistic communication, granted without legal reserve, to be transposed of restrictions that belong to other fundamental rights and, when its exercise collides with another fundamental right or juridical-constitutional good, the justification to a possible state intervention that tangentiates its protection area goes, necessarily, through the perquisition of the artist s animus, the used method, the many viable interpretations and, at last, the correct application of the proportionality criteria. The cultural public politics analysis, nevertheless, observes the pluralism principle of democratic substratum, developer of the cultural dialogue and opposed to patterns determined by the mass cultural industry. All powers are attached, on the scope of its typical attributions, to materialise public politics that have the cultural artistic good as its aim, due to the constant rule contained in §1, art. 5º of the Federal Constitution. However, the access and the incentive laws to culture must be constantly supervised by the constitutional parameter of fundamental right to equality

Contribuição ao estudo da isonomia na tributação sob a perspectiva da ordem econômica

The study aims to investigate the limits of state intervention via induction on Economic Order, especially in cases regarding tax equality, through the analysis of their effects on economic development and on free competition from the perspective of economic efficiency and the Constitution. Thus, the work seeks to demonstrate that the achievement of equality in taxation is important in that it strengthens the economic relations in terms of efficiency, protects competition and fosters economic development to reduce regional and social inequalities and other constitutional desiderata. A dissertation is characterized by interdisciplinarity and was divided into two parts. The first is to discuss the legal meaning of equality from the doctrinal analysis of the principle and the relationship between equality and justice in the economic sense without rejecting its philosophical content. It is noteworthy that hermeneutics and the philosophy of language are useful tools for achieving equality in presenting the pragmatic methodologies applicable to the subject in terms of corrective justice. Based on these general assumptions, is going to study the tax equality and their characteristics, the corollary of the ability to pay and its relation to the economic capacity and the issue of progressivity in taxation as an ideal of distributive justice. The second part concerns the legal foundations of Economic Order and its relation to extrafiscality as a means of economic regulation in order to investigate the efficiency of this induction in order to promote economic development, free competition and tax equality itself to reduce inequalities and distributing wealth. Within this context, we investigated the scope of the constitutional principles of economic order, free enterprise and free competition, and favored differential treatment for small and medium enterprises, the issue of regional development for the reduction of regional and social inequalities, the problem the "fiscal war" and finally the efficiency from the perspective of Economic Analysis of Law

Hermenêutica constitucional e fficácia dos Direitos Sociais

The present research has, as general objective, to seek a constitucional hermeneutics directed toward the improvement of the efficacy of the social rights rules, with the purpose to solve the elapsins problems from the general picture of its inefficiency, which are disposed on the Constitution, in its ample majority, as mere regular norms. Leaving of the premise that no Constitutional norm can be without being materialized and the true development of the State is it the social one (based on the principles of freedom, equality and solidarity), it will be demonstrated that the arguments in favor of the legislative inefficiency configure a true blow on the Democratic State of Brazilian Law. For this, it will be done, preliminarily, a study of the basic rights, legal category where it is found the social rights. To follow, it will be analyzed the hermeneutics of the legal norms, with emphasis on the specifics of the constitutional hermeneutics and its methods of interpretation. Finally, the aspect on the improvement of efficacy and the effectiveness of the social rights will be studied, through a new readind of certain dogmas that still persist in the legal world, being distinguished the institutiones of the reserve of the possible and the existential minimum. Ahead of this, after verifying the new paradigmas of the interpretable activity, will be demonstrated how it is possible to get an upgrade on the effectiveness of the social rights

O direito coletivo prestacional à saúde e o poder judiciário: a concretização do art. 196 da Constituição de 1988 pela via jurisdicional

During the ninth century, owing to the process of industrialization, new social conflicts were showed, forcing the Government not to remain inert. The necessity of answer to these new demands requires from the State some actions that assure the new economic, cultural and social rights, able to exceed the formal equality, according to the principles of redistributive equality and well-being. Among the social rights, the right to health is showed up, which is placed at the Universal Declaration of Human Rights and the International Treaty for the Economic, Social and Cultural Rights, as a necessary term to promote the dignity and the free development of the human personality. Under the Constitutional Law, it is clear that the implementation of the right to health, placed at the 6th article of the Brazilian Constitution, demands a government activity, which usually requires a provision of material goods, depending on budgetary resources. The Legislative and Executive Branches have a very important role in compliance with the constitutional regulations about the satisfactory offer of health care services, besides the correct use of the resources at this area. The adoption of public policies is the way of Government action to the planning and realization of this right. Though, some public policies are usually made apart from the social compromises, to the detriment of the basic social rights. The government has a discretionary competence to manage the health services. That is the reason it is necessary the control of the political choices, through the popular control, the extrajudicial control by the Account Courts, or the judicial review. Owed to the constitutionalization of social rights, the constitutional justice has a very relevant role, concerning to the constitutional jurisdiction, in a way the Judiciary Branch assume your position as a player that transforms the society. On the control of the public health policies, there is a cast of official instruments, judicial or not, to the guarantee of the collective right to the public health services, and to allow the citizens to reach the real implementation of the right to health

Emprego formal na região nordeste brasileira: seus efeitos na inclusão social

This work aims to study the problem of the formal job in the Brazilian Northeast region and its effect in the social inclusion, taking for base the analysis of variables defined in the Atlas of Social Exclusion, which is based on the 2000 Brazilian Census, choosing the county as unit of analysis. As methodological options, an exploratory data analysis was performed, followed by multivariate statistical techniques, such as weighted multiple regression analysis, cluster analysis and exploratory analysis of spatial data. The results pointed out to low rates of formal job for the active age population as well as low indexes of social inclusion in the Northeast region of Brazil. A strong association of the formal job with the indicators of social inclusion under investigation, was evidenced (schooling, inequality, poverty, youth and income form government transfers), as well as a strong association of the formal job with the new index of social inclusion (IIS), modified from the IES. At the Federative Units, in which better levels of formal job had been found, good indexes of social inclusion are also observed. Highlights for the state of the Rio Grande do Norte, with the best conditions of life, and for the states of the Maranhão and Piauí, with the worst conditions. The situation of the Northeast region, facing the indicators under study, is very precarious, claiming for the necessity of emphasizing programs and governmental actions, specially directed to the raise of formal job levels of the region, reflecting, thus, in improvements on the income inequality, as well as in the social inclusion of the population of Northeastern natives.

Avaliação dos impactos do programa bolsa família na renda, na educação e no mercado de trabalho das famílias pobres do Brasil

This study aims to verify the impact of the Bolsa Família Program (BFP) in income and school attendance of poor Brazilian families. It is intended to also check the existence of a possible negative effect of the program on the labor market, titled as sloth effect. For such, microdata from the IBGE Census sample in 2010 were used. Seeking to purge possible selection biases, methodology of Quantilic Treatment Effect (QTE) was applied, in particular the estimator proposed by Firpo (2007), which assumes an exogenous and non-conditional treatment. Moreover, Foster- Greer-Thorbecke (FGT) index was calculated to check if there are fewer households below the poverty line, as well as if the inequality among the poor decreases. Human Opportunity Index (HOI) was also calculated to measure the access of young people / children education. Results showed that BFP has positively influenced the family per capita income and education (number of children aged 5-17 years old attending school). As for the labor market (worked hours and labor income), the program showed a negative effect. Thus, when compared with not benefiting families, those families who receive the BFP have: a) a higher family income (due to the shock of the transfer budget money) b) more children attending school (due to the conditionality imposed by the program); c) less worked hours (due to sloth effect in certain family groups) and d) a lower income from work. All these effects were potentiated separating the sample in the five Brazilian regions, being observed that the BFP strongly influenced the Northeast, showing a greater decrease in income inequality and poverty, and at the same time, achieved a greater negative impact on the labor market

Convergência ou divergência no desenvolvimento? um estudo multidimensional para o sudeste e o nordeste do Brasil, 1990-2010

The analysis of some aspects of development in Brazil in the past three decades reveals an improvement on a range of indicators isolated in the south east the richest region and north east the poorest region. From a database of twenty variables, the main purpose the study was to verify if there are indications of convergence or divergence in five dimensions of development between the two regions from 1990 to 2010. Aiming to identify the states more similar and different, and to verify changes in the composition of low development groups and high development in the adressed period, was used the analysis of groupings (Cluster Analysis). Additionally, to test equality of distance between states all the time, was used the non-parametric Test of Wilcoxon. This makes it possible to verify IF the distance between the states of two regions has been increasing or has been falling, showing signs of divergence or convergence. The results of Cluster s analysis suggest that there are indications of convergence inside the cluster of north east, but the distance between two regions has not changed. The results of test of Wilcoxon suggests that there have been no changes statistically significant in the distance between the states, in the two regions the standards of development became more homogenous, but the two regions will be far apart

Diferenciais de rendimentos por gênero: uma análise dos efeitos composição e estrutura salarial no Brasil (1976, 1987, 1996 e 2009)

This study aims to analyze the income differentials by gender in Brazil, in the years 1976, 1987, 1996 and 2009. Specifically, there are two objectives. First, attempt to analyze the importance of the effects of composition and wage structure in the job market. In the second, to verify which socioeconomic variables explain the effects of composition and wage structure in the job market. The information in this study was obtained from the microdata of Pesquisa Nacional por Amostra de Domicílios (PNAD) regarding the respective years. In the first stage of the methodology we used: the index of income distribution Theil-T; the income gap decompositions proposed by Oaxaca (1973) and Blinder (1973); and Firpo et al. (2007). In the second stage we applied the RIF regression method (Recentered Influence Function) of Firpo et al. (2007). The results show that income inequality is higher among men than among women in the country. It was observed that the component of inequality between people of the same gender represented the largest share in the decomposition of income inequality between genders. It was found, in the decomposition of the average income, a downward trend of income gap, but the differential remains favorable to the men. We noticed that the impact of the composition effect in reducing the gap was offset by the positive effect of wage structure. Regarding the distribution quantis, income differential between genres appeared greater at the bottom, in the years 1976, 1987 and 2009; and at the top of the distribution, in 1996 featuring, respectively, the sticky floor and glass ceiling effects in Brazil. As for the decomposition of the RIF, it turns out that the composition effect assisted in the downfall of the income gap between 1976 and 2009, but was offset by the positive effect of the wage structure in quantis 10th, 50th, and 90th. The main socioeconomic variables influenced the drop in income gap were: the composition effect, the manual labor occupations, service sector and low-grade and high school, and the wage structure effect, schooling low and high experience professional and technical occupations and urban centers

A cor ausente: um estudo sobre a presença do negro na formação de professores - Pará, 1970 1989

The subject of study of this work is the teacher spawning of the Instituto de Educação do Pará in the decades of 1970 and 1980. It aims the enablement offered by the institute concerning the racial issue. The thesis highlights the inferior condition to which the black student is relegated and the discrimination it suffers. Our argument is to affirm the omission of the curriculum and the reference resources as far as the racial issue is concerned. Before the singularity of the Brazilian case a country with a slavish background, with serious social unbalance problems, many of them resulting from the racial segregation implemented by that slavish system , this work claims that the preparation of the teachers for dealing with this issue is crucial, since the absence of this preparation leads to the reproduction of the prejudice inside the classroom. This thesis is based on the theory of Pierre Bourdieu on the notion of habitus and symbolic power

O Projeto político-pedagógico na perspectiva de consolidação da cultura organizacional e da autonomia da escola

In this research, we have found that, besides the literature in educational area presents the politic-pedagogical project as a pedagogical component that is able to promote changes in educational practices and to consolidate the school autonomy, some researches point to an opposite view-point, mainly due to the fact that these researches verify that several schools have elaborated their project just to comply with a formal exigency of the Brazilian educational reform implemented from the 1990 decade. Despite of the neoliberal and neoconservative forces (that guide this reform) understand the politic-pedagogical project as a way of stimulating scholar organizations, in order to put in practice the educational politics of this decade, we understand that this project can, in fact, promote changes in the scholar practices in the sense of overcoming the bureaucratic scholar culture historically developed in this environment. This research presumes that the process of planning, implementation and evaluation of school actions that is excited by the politic-pedagogical project can stimulate the subjects to develop practices, values, and senses, bypassing in some aspects the culture that is traditionally instituted in school, what will certainly favor the construction of its autonomy. The research that we have done in Professor Ascendino de Almeida Municipal School situated in the South Zone of Natal, RN, Brazil, was developed according to the following methodological procedures: document analysis, semi-structured interview, and participative observation. In the focused school we evidence that the politic-pedagogical project is a product of interpersonal and professional relations that are marked by shared powers, by dialogical action, by participation, and by equality, that (all of them) mediate decisional processes, what makes it possible the construction of common senses in order to guide the educative action. We yet evidence the existence, between the professionals that integrate this institution, of a culture for valuation of planning, of collective reflection, and of theoretical support, besides a commitment with the formation of the student with who they work, this making possible that the politic-pedagogical project constitutes in an orientation for the process of reflection, action, and evaluation of the school work. In these conditions, this project propitiates the consolidation of the school autonomy, what, in its turn, prints higher quality to the educative work developed in the institution