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

Direitos da personalidade: uma análise acerca da concretização da tutela constitucional

It dares to ensure that the Constitution of the Republic strengthened the rights of personality. No longer considering the denial of protection to intangible rights, against the imperative command coming from the art. 5 ° of our highest law, relevant to items V and X. Overlooking these emerge with precision, those rights of personality. Innocuous have been isolated attempts of the opposition to this constitutional protection. Deny it, or rather to restrict it, as it has done insignificant part of the doctrine and isolated judgmental pronouncements, no longer prove appropriate. Today, more than before, there is pointed out that if the human being has personal rights acquired from the design, adding to this other identity elements that allow the projection of a particular social personality. Such rights, it is worth mentioning, there are bases on the principle of human dignity that is considered general provision for the protection of personality. Based on the demonstration of this fact, after climbing into the general theory of personal rights and demonstrate the legal protection that has been present in his favor, it is hoped will, general objective, to show the effectiveness of this constitutional protection. At that point, will be reserved for special to the procedural tools that it has made a decisive contribution to the realization and effectiveness of the rights of the personality, a reality that must be imposed for the benefit of the dignity of the human person, presented here as basic foundation of the Democratic State of Law. The brazilian legal system provides the normative basis needed to provide an adequate protection to personality, from the general clause of the protection of the personality. For the achievement of its effectiveness, however, is an important update methodological and cultural of the Right as well as an effective deployment of public policies and private ensuring a better quality of life for citizens

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

Os direitos humanos e a jurisdição constitucional brasileira no estado democrático de direito: a legitimidade contramajoritária no contexto do constitucionalismo pluralista

Os Direitos Humanos, compreendidos como o conjunto de direitos indispensáveis à efetivação da dignidade humana, encontram-se, atualmente, no centro das discussões e relações jurídicas internacionais e nacionais. Seu amplo reconhecimento em nível mundial e a universalização de seus preceitos centrais alçaram o Direito Internacional a um nível de evolução e de relacionamento com o Direito Constitucional que se mostram impassíveis de serem ignorados pelas jurisdições nacionais. Encontrando-se tais direitos na base do constitucionalismo moderno, o que os mantém em estreito relacionamento com o pluralismo e a democracia, faz-se imperioso recordar-se que as noções jurídicas que os animam serviram de base histórica e genética ao reconhecimento e à positivação, em nível constitucional, dos assim chamados direitos fundamentais. Em sintonia com a especial deferência que se tem ofertado aos direitos humanos na sociedade contemporânea global, nossa Constituição positivou entre os princípios regentes de suas relações internacionais ordem expressa de prevalente respeito aos tratados internacionais estabelecedores desses direitos, além de ter possibilitado a recepção desses pactos em nosso ordenamento jurídico, inclusive a título de preceitos constitucionais, conforme Emenda Constitucional n. 45/2004. Esse tratamento especial, além do processo democrático que conduziu o Brasil a uma progressiva aceitação dos tratados, pactos e convenções humanitários, torna possível a conclusão de que os Direitos Humanos apresentam elementos de diferencial carga legitimadora, podendo contribuir, significativamente para, a legitimação democrática de nossa Jurisdição Constitucional. Também é possível perceber-se que, ocorrente em esferas de poder e de legitimação diversos, em particular a nível internacional, a importância conferida aos Direitos Humanos não resta esvaziada pela ampla proteção constitucional conferida aos direitos fundamentais. Particularmente questionada em sua perspectiva democrática, mormente ante o cumprimento da nominada regra contramajoritária e em face da crescente ampliação de seu poder político, nossa Jurisdição Constitucional não pode mais permanecer alheia aos condicionantes determinados pelas amplas imbricações que se desenvolveram no estreitamento de relações entre o Direito Constitucional e o Direito Internacional dos Direitos Humanos. Também a crise dogmática ditada pelo distanciamento havido entre o direito posto e a realidade nacional tem implicado em inegável desgaste público da atividade jurisdicional, principalmente da jurisdição voltada à proteção constitucional. O papel da Jurisdição Constitucional atual há, portanto, de ser cumprido em sintonia com as normas internacionais de Direitos Humanos, principalmente em respeito às normas constitucionais pátrias que ordenam a prevalência desses direitos nas relações internacionais. Nesse sentido, pode e necessita nossa Jurisdição Constitucional valer-se do particular potencial legitimador das normas definidoras de Direitos Humanos, reconhecendo e efetivando tais normas e adequando-se às tendências modernas que a elas conferem especial proteção, num processo dialético de inolvidável natureza democrática

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

Era um sonho desde criança : a representação social da docência para os professores do município de Queimadas-PB

The objective of this work was to access and understand the teaching social representation (MOSCOVICI, 2005) for the teachers of the children education and fundamental education at Queimadas city, Paraíba. We assume that one representation that allows the teacher to name its profession and to act on it, is a derivative of regularities that are expressed by means of a habitus (BOURDIEU, 1983a), generative matrix of perception and action. This teaching habitus is originated from the experiences and the trajectories of social and professional life of the group. Therefore, from some variables, we tried to access the profile of the group of teachers studied and to get closer of their life style to understand their profession choice and the teaching social representation for this group. In this research, it was used four data sources: a) the questionnaires of characterization; b) the questionnaires of practices and meanings; c) the experience reports and; d) the interviews in depth. The analysis of the data collected was done by means of the simple statistics (frequency), the intersection of variables through cross tables and, the thematic analysis of the contents. The results show that there is a lightly homogeneous group in terms of its social origin and its life style, moreover, they conduct to an overlap between this origin/style and the professional choice. On the other hand, the teacher representation is multi-dimensional such that, all dimensions intercept and articulate with each other to provide a concise teacher representation. They are four dimensions: love and care, help and donation, teaching and learning and, sacrifice and hope. The elements of the teacher representation are substantiated in the schemes of perception and appreciation of the group, in the regularities and life experiences in the context of religion, family, gender and profession. In these regularities we find the elements that comprise the teaching habitus which drives perception and action, representation and daily practice of these teachers. The teaching social representation is still perceived as a threshold for the professional identity of the group of teachers considered. We also observed that there are signs of changes in the practices used by these professionals since they graduate from the course of pedagogy. However, it is not possible to say that these changes are isolated or they lead to a transformation in the teaching habitus or the teaching social representation

Concepções de infância e de educação infantil que permeiam a prática docente

This investigation proposes to analyze the teaching practice in the Child Education, considering the childhood and the Child Education conceptions declared by the teachers. It was opted as methodological approach the qualitative conception of research, marking a critical perspective of the subjects, and their relations in the educational processes. It was privileged as instruments of construction of the data, the observation of the practices of the teachers developed in the ordinary day, the semistructured interviews, and the documental analysis to complement information, through the developing report of the students, done by the teachers in the end of the teaching year. This way, from the understanding of the childhood in a social perspective, and historically constructed, considering the concrete children insertion in the social reality and the child as a whole subject and by rights, it was developed the interpretative analysis of the data. The investigated reality showed that the childhood conceptions linked to the comprehension of child and child development, declared by the teachers, subjects of the research, have been associated, in some aspects, to the present thought of thinking and acting in relation to the small child, evidencing, consequently, several limitations of pedagogical order, and the demanding evidence of a bigger development of the teachers about the question.

Cecília Meireles e a lírica pedagógica em Criança meu amor (1924)

The research Cecília Meireles and the Pedagogical Lyric in Children My Love (1924) consists in a critical analysis, a cultural and historical approach to the pedagogical intentionalities and to the social and educational functionalities expressed in the childish literary work of the poetess and educator Cecília Meireles (1901-1964), in Brazil, during the first decades of XX century. The author s conceptions of the literary art, the philosophical and educational foundations, the Christian and liberal ideologies and values pertinent to her work for children and the relations between her texts and the ideals of the Brazilian intellectuals to effect changes in the every day life based on the child formation and on the teaching feminization process were examined in the work. This paper shows a content analysis with the intention of offering signification to the work Children My Love (1924) according to the investigation of specific categories: child, motherhood and schooling; through the exploration of synonymous and bipolar key-words found in Cecília s documents: child/adult, teacher/mother; school/home, ignorance/intelligence. The research intends to understand how the author articulates, in her informal pedagogical action in Children s Literature, science, literary and Christian faith knowledge, in order to expand her social and educational ideal concentrated in children, guided by the maternal hand and aimed at constructing a New Man, New Civilization and a New Social Order

Aí eu era Antônio Brasil: contribuições de situações didáticas com conhecimentos históricos para a construção da identidade pessoal da criança na educação infantil

L'objectif de cette étude est de comprendre la relation entre les situations didactiques faisant appel aux connaissances historiques et la construction de l'identité personnelle pour les enfants dans l'éducation de la petite enfance. Sa question centrale se demande si les connaissances sont offrent des contributions à la construction de l'identité personnelle par les enfants de la petite enfance. Se distingue, lui aussi, entend contribuer à élargir le débat sur l'enseignement et l'apprentissage des thèmes historiques dans l'éducation des enfants, et permettre un dialogue avec d'autres enseignants dans cette étape de l'éducation. Ont été analysés par des principes théoriques et méthodologiques de qualité et a assumé les orientations méthodologiques de la recherche collaborative. Il a été constaté que la systématisation des situations didactiques impliquant la connaissance historique dans l'éducation de la petite enfance contribue à la construction de l'identité personnelle de l'enfant. Ceci, pour prendre possession de ces connaissances, ils recueillent des renseignements qui permet le plus large éventail de relations, afin de comparer les pratiques culturelles de son temps avec des pratiques à d'autres moments. Ainsi orientée, l'enfant cherche à raconter son histoire avec le thème historique à laquelle elle a eu accès, d'organiser et de construire des réponses des explications sur leur environnement et de lui-même. Tout cela montre à la réalisation que le processus d'internalisation des connaissances historiques de l'enfant est construit comme un sujet et, par conséquent, cette connaissance peut être conçu comme un médiateur dans la formation de l'identité personnelle

A escrita e a criança com síndrome de Down: uma relação possível na escola regular

The school inclusion is based on respect for diversity and the belief that everyone has the capacity to learn and develop, for this the school needs to prepare itself to meet the differences and provide a meaningful learning for everyone, including those with Down syndrome. It is in the interaction with others that children develop their skills and exchange substantial experiences to learn the school and non school knowledge. Among the knowledge the school must offer students, there is one that is indispensable to the present society; the writing, because writing is a way to Interact, to communicate and to build autonomy to relate in society. Before exposed, the research that started this study aimed to investigate the level of the writing conceptualization of children with Down syndrome during the literacy process in a regular school of the private school network in the city of Natal/RN. For carrying out this study, initially we conducted a qualitative research, using the bibliographical as a methodological recourse, seeking to the deepening of information, based on the literature about the subject, which allowed us to collect data about people with Down syndrome, their education and the process of the writing acquisition. Later, a case study was performed, involving free observation in the room and interviews with teachers and children, trying to verify how this writing acquisition process occurs by children with Down syndrome. The data analyzed and information recorded demonstrated that the school inclusion, when taken seriously, benefits the learning of writing for children who have intellectual deficit, and, mainly, they develop in this environment and are able to learn to write, as long as their own pace are respected

A recepção da criança com deficiência intelectual ao texto literário na educação infantil

The focus of this thesis is children's reception to literary texts starting from literary livelihood in an inclusive literary context, looking for the possible evidences that are present in the construction as reader/hearing of literature. Based on a study case, we search the ways of participation of a child (girl) with intellectual deficiency in situations of offering and reception of literary texts, looking for the understanding and explication of some aspects of her processing and the building up of an initial reader. The data were taken starting from observations in moments of reading and story-telling in the period from November to December/2008 and May to June/2009 in a public school of children education, in Natal- Brazil, in which there was a registered student showing intellectual deficiency associated to Down syndrome. As research tools we used: field diary, interview scripts and video recordings. The analyses were based on research from Amarilha (2001, 2006a, 2006b), Bettelheim (2007), Coelho (2008), Iser (1996), Jauss (1979, 1994), Luria (1990a, 1990b), Vygotsky (1991, 1993), Wallon (2007, 2008) amongst others. The research showed that although expressing little verbalization and limited levels of attention, body attitudes, movements and talks of the child under investigation, denounced engagement and rendition to the sonority of the texts shared. These data gives us traces that, under a mediating action, the child with intellectual limitation can turn into a reader/hearing subject of literature, developing a sensitive and a selective attitude towards the literary text. Amongst other aspects, we identified that (1) a conception of deficiency present through the school that recognizes his/her potential of developing and learning (2) the situation of sharing, that favours a relation with the texts through the other, and (3) the relevance of orality providing the semantic paths that help the child in the building up of meaning, presenting themselves as fundamental to her/his viewing of the literary text, and, therefore, the formation of the reader. Thus, recognizing her/his capacity and possibilities, we think it is important to guarantee to the child with intellectual deficiency, a space towards interaction with the fictional text in which the child can learn and live its ludic and interactive character, to enjoy its hearing abilities, benefiting, then, from the aesthetic experience lived, mainly, in collective situations mediated through the more experient reader and shared with her/his different pairs. The research shows yet that, looking after conditions that guarantee a comfortable environment to the story hearings in the classrooms that focus on children education, being aware of a selection and the prosody of stories, the didactic contract, the attention to individual reactions, enlarge the possibility of any child deficient or not to enjoy her/himself as reader/ hearing subject of literature, engaged in its richness and magic

O brincar e a criança com deficiência física na educação infantil : o que pensam as crianças e suas professoras

The present study had the purpose of examining the disabled children s way of playing on everyday situations in the CMEIs (acronym in Portuguese for City s Early Childhood Education Center ) of Natal/RN, by watching and listening to three children and their teachers, trying to understand how the games existent in these contexts involve the different subjects of the learning process, and which contributions emerge for a valuable pedagogic work, capable of providing the children s inclusion in the Early Childhood Education. This qualitative investigation was built as a case study, collecting data through watching and interviews. Throughout the observations, it was indispensable to look into the different contexts of the school routine, to capture and analyze events that could answer to what was being studied. The accessibility conditions of the school spaces were also observed. The interviews made possible to extract from the subjects what they think and how they perceive themselves when playing. The acquired data were analyzed having as counterparts contemporary studies and theories about playing, childhood and school inclusion, and published documents from the Education and Culture Department that treat of this theme as the guiding axis of the pedagogic proposes aimed to the Early Childhood Education. The revelations of the research show that is necessary to put effort on the disabled children s playing inside the context of the Early Childhood Education, regarding the accomplishment of accessibility laws that treat of school spaces and providing of equipment and resources that respect those children s characteristics, as well as providing opportunities for initial and continued training for the teachers, under the perspective of inclusive education and playing

O Evangelho segundo a Pastoral da Criança :por uma pedagogia da sobrevivência

This work aims to analyze social and educational actions at Pastoral da Criança, using education as a survival tool. This was done at Parque dos Coqueiros, a neighborhood in Natal, Rio Grande do Norte. The methodology for data collection was composed of comprehensive interview (Jean Kaufmann), participant observation (Robert Bogdan) and documental analysis (Le Goff); all os which bring reflections related to concepts such as strategies, tatics and know how (Michel de Certeau), configuration (Nobert Elias), and control technology (Michel de Foucault), care ethics (Leonardo Boff) and etno-theories (Natália Ramos). Pastoral da Criança is a social action organism that belongs to the National Conference of Bishops of Brazil, originated at Florestópolis, Londrina (Paraná), in the year of 1983. These actions have been an expression of a new logic of actions of the Catholic Church. It values the participation of laymen in the activities of the Pastoral. Thus, the parish is seen as a nucleus that irradiates the Church s Social Doctrine. At Rio Grande do Norte this institution has guided poverty stricken families on issues related to children s health as well as working with laymen for volunteer work. This is considered devotion, that is firmed by an individual and group mystique. The social and educational actions are done in three axes: 1) Monthly home visits, where there is mother-child support; 2) Life Celebration Day, where they weigh children and promote nutritional surveillance; 3) Meeting for Evaluation and Reflection, that aims to articulate community leaders to think about problems attached to the social actions they realize. This action tripod , as it is called by the Pastoral Agents are the types of actions that fundament survival education for poor children ranging from 0 to 6 years old. The families learn to deal with prevention, the essential, the alternative and probabilities of survival tactics due to exclusion matters or even social extermination. The Pastoral da Criança aims to recover childhood emotions in poverty stricken areas. It also has influence in the diminishing of malnutrition and mother and child mortality. This education for survival is the base on the art of teaching and learning of poverty stricken children. It is a social educational action, non assistencialist, but considered a shy action in order to promote mobilization of the communities that are accompanied for the emancipation and change of social conditions

O olhar da criança sobre a brincadeira nos anos iniciais do ensino fundamental

Universidade Federal do Rio Grande do Norte