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

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

Proteção da relação de emprego sob o prisma da dignidade da pessoa humana

This work aims to show that the protection of the employment relation is one of the determining factors to respect the principle of the human dignity. The goal is initially to show the devaluation of work from antiquity to the early twentieth century, when the constitutions began to standardize protective devices. This way, the consecration of the social labor rights in the Constitution of 1988 represents the culmination of the historical achievements. This work demonstrates that such rights can not be reduced or suppressed by political conveniences, once these rights are included in the list of immutable clauses. It is displayed that to achieve the fundamental right to work is not well advised to encourage the creation of jobs that maculates the worker s dignity. The outsourced work is, therefore, a classic example of the advancement of precarious forms of contemporary labor. It is inferred that the presence of various forms of harassment results in a degradation of working environment, bringing about dire consequences on professional and personal life of the worker. Thus, decent work must be the appropriate benchmark for the creation of new jobs. It is also shown that the flexibilization of the propaganda rights by certain pressure groups has as main goal to reduce or eliminate rights, based on fallacious data depicting an increase of competitiveness and jobs. In addition, the flexibility implies a growth of the precarization of the work - a reality felt by many workers subjected to such a situation due to the unemployment phenomenon whose origin is not in the protectionism of the norms. It is necessary to expand and structure the constitutionally legitimate institutions to monitor and curb the precarized work, as well as all practices that go against the dignity of the worker. It is also shown the loss of power of the sindicates in the last few years as a consequence of the pulverization workes and the capital attacks through the productive restructure whose outsourcings and privatizations are notorious examples

Os antagonismos da integração sul-americana na ordem jurídica brasileira

The economic regional integration is a phenomenon observed in numerous occasions inside the global economic reality. Watchful to that phenomenon, the 1988 s Brazilian constitutional order establish in its 4th article, single paragraph, the commitment to seek for the Latin- American integration, as a Fundamental Principle to the Brazilian Federative Republic. Regarding the mentioned constitutional disposition s realization, the Brazilian State celebrated, specially, the 1980 s Montevideo Treaty, creating the Latin-American Integration Association, and the 1991 s Asuncion Treaty, performing the duty to establish a common market, in sub regional level, with Argentina, Paraguay and Uruguay, called Mercado Comum do Sul. However, due to an addiction to a wrong comprehension of State s Sovereignty Principle, the Constitution imposes to the international rules an incorporation process, without providing any privilege to those ones regarding the integration constitutional disposition s realization, whether original or derived. The Brazilian s Supreme Court, as matter of fact, affirmed that it is not possible, facing the actual constitutional order, to grant any character of preference. Also in the controversies solution mechanism, responsible for the law s execution in case of its noncompliance, where found malfunctions, most notably the system s open character and its excessive procedural flexibility, in addiction to restricting the access of individuals. It follows from these findings, then, the lack of legal certainty provided by the Mercosul s legal system, considering its effects both international and within the Brazilian state. Among the possible solutions to reduce or eliminate the problem are using the practice of the so-called executive agreements in the Mercosul s original rules incorporation to the Brazilian state, the creation of a Mercosul s court of law and/or a constitutional reform