A corretagem de imóveis no Rio Grande do Norte: das práticas históricas à emergência como segmento integrante da fração imobiliária do capital

This research proposed to question the development of what was defined as historical practices (commercial, social and political institutions), of the economic activity of the real estate brokerage in the Rio Grande do Norte from the progressive institutionalization of economic agents - individuals (realtors) and legal (real estate) - based on two main approaches: a) the development of economic activity as an integral segment of a fraction of capital (POULANTZAs, 1985; LESSA, 1981). This work set out from a socio-historical approach of the historical practices development the of real estate brokerage in Brazil started in the Southeast, especially in the cities of Rio de Janeiro and São Paulo as a result of the "expansion of capitalist relations by the housing sector" (RIBEIRO , 1996). especially the real estate capital ; b) the historical development of relations between labor and capital within the activity, in other words, the development of the relationship between realtors and Real Estate in relation to "group of interests" and their "collective actions" (OFFE, 1984). These historical practices are defined in this research as: 1) mercantile practices, times when there was no distinction between the activity of real estate brokerage and other forms of mercantile capital; 2) social practices, which began in the 1930s, when agents of real estate are to be distinguished from each other within the activity through Taylorist division of labor between workers realtors and developers of real estate; 3) political and institutional practices, initiated in 1962, characterized by State action, in the individualization and distinction of the agents of real estate brokerage as socioprofessional category regulated throughout Brazil by Law 4.116/62 and 6.530/78. The results achieved by the present study showed that in Rio Grande do Norte, due to the specifics as to the peripheral processes of urbanization of the constitution of the land market, as well as the process of conservative modernization of the oligarchic State from the 1960s (CLEMENTINE, 1995; FERREIRA, 1996, 2010, TRINDADE, 2004), the State was led to the development of a late manifestation of the historical practices of real estate brokerage. In other words, it was a process in which historical practices, in particular social practices, not fully developed, mitigating, thus the perception of realtors from his position in the process of exploitation of labor by the Real Estate. And, as a result, of their collective interests front of them.

Bioética e biodireito: interfaces e confluências

This thesis addresses the development of technoscience in times of transnational globalization and highlights the vulnerability of the discourse of social progress, which may be replaced by evidence of social risk before the artificiality of nature and humanity. That demands an ethical and legal responses to events that impose the necessity of an ethical control in biotechnology research involving human beings contributing to the rise of Bioethics and Biolaw as fields of knowledge. This theme is studied from a multidisciplinary perspective seeking a dynamic dimension in the interpretation of research data reconnecting Social Sciences to Legal Sciences (Biolaw) and to Philosophy (Bioethics), in order to obtain answers to the problems posed. The objective delimited is to examine the interfaces between Biolaw and Bioethics, in order to observe the confluence of these areas of knowledge. Biolaw is considered as a new legal branch derived from the paradigmatic transition of Law and wonders how it will stand before questions resulting of social transformations caused by biotechnological development that endangers humans and society. It is concluded that the relationship between Bioethics and Biolaw is recursive and inseparable and it contributed to the "unthink" of traditional legal model of linear view/reductionist allowing that the "certainties" will be replaced by "possibilities", which comes to enable Biolaw to confront the issues caused by the development of biotechnology that violates physically and morally the human person. It is perceived, therefore, that Biolaw is driven and aided by bioethical reflections and it positions itself before the dilemmas caused by biotechnology in creating, interpreting and applying coercive rules which aims to protect the human being, his offspring and society

Do controle de constitucionalidade dos atos jurisdicionais transitados em julgado

The following study aims to verify in which hypothesis res judicata, when it comes of an unconstitutional decision, shall not prevail over Constitution. It displayed the characteristics of formal and material constitutional systems. It debated the concepts of existence, validity and efficacy of juridical rules and acts. It dissertated about the idea of Constitution s superiority and about the birth of the judicial review of constitutionality. It focused some contemporary models of this judicial review and its historical evolution in Brazil, showing its effects towards the current Constitution. It sustained that the decision given by Supremo Tribunal Federal during abstract control of rules must bind even legislative bodies, preventing them to produce the same rules previously declared unconstitutional. It held up that all parts of the decision of Supremo Tribunal Federal oblige, even the juridical arguments employed, in both diffused and concentrated reviews. It showed that, despite these models of review live together in Brazil, our constitutional system preferred the concentrated one, considering one only court over the other constitutional organs. It discussed about res judicata with the purpose of clarifying its juridical nature, its objective and subjective limits and its regulation in collective demands. It explained that the material res judicata is an effect of a decision which cannot be reviewed, which makes the law s will free of discussion, binding the contendants and avoiding that other courts, judging future demands about the same object, may decide differently. It showed how the regulation of res judicata in collective demands, in respect oh their subjective limits, is useful to demonstrate that it is not the material law who must adapt itself to res judicata as traditionally thought, but res judicata, as a warranty of juridical certainty and security, who must be shaped from the debated rule. It presented to view the main doctrinal conceptions about res judicata s review in the hypothesis of unconstitutional judgement. It concluded that the decisions forged by unconstitutional rules or interpretations reputed not compatible to the Constitution by Supremo Tribunal Federal, in spite of it can make res judicata, may be reviewed beyond the term to file a recissory claim, since while the debated law is still valid, no matter if its decision was before or after the res judicata. At the end, it asserted that, when it is not legally authorized, the judicial review of res judicata is not admissible, after the term to file a recissory claim, under the argument that there was no direct violation to the constitutional principle or rule

O princípio constitucional da livre concorrência como instrumento de desenvolvimento socioeconômico

The freedom of concurrence, firstly conceived as a simple market fundament in productive systems that recognized the productive forces freedom of action, appears as a clear instrument of protection and fomentation of the market, recognizing the importance of the simultaneous existence of various economic forces such the proper capitalism reason of constitution. It has, thus, a directly role linked to the fundamental idea that the market and its productive forces needed of a protection against itself, because it exists inside the market situations and circumstances, provoked or not, that could prejudice and even annihilate the its existence and functioning, whilst a complex role of productive forces presents at all economic creation space. It was the primacy of the classic liberalism, the first phase of the capitalism. The Constitutions, in that historic moment, did not proclaim any interference at the economic scenario, simply because it recognized the existence of an economic freedom prepared to justify and guarantee the market forces, with its own rules. Based on the structural changes that occurred at the following historic moments, inside the constitutionally recognized capitalism, it was verified changes in the ambit of treatment of the freedom of concurrence principle that, in a progressive way, passes to present a configuration more concerned with socialist and developing ideas, as long as not only a market guarantee. It emerges a freedom of concurrence which aim is instrumental, in relation to its objectives and constitutional direction as a role, and not anymore stagnant and with isolated treatment, in special at the constitutional systems the present s clear aspects of social interventions and guarantor of fundamental rights more extensive and harmonious. That change is located at a space of state actuation much more ample and juridical important, this time comprehending the necessity of managing the productive scenario aiming to reach a national social and economic development effectively guarantor of fundamental rights for all citizens. Those Constitutions take as point of starting that the social and economic development, and not only anymore the economic growth, is the effective way for concretization of these rights. In that way it needs to be observed and crystallized by political and juridical tools that respect the ideological fundamental spirit of the Constitutional Charters. In that scenario that seeks for solutions of rights accomplishment, in special the social rights, the constitutional principle of freedom of concurrence has been seen as an instrument for reaching bigger values and directives, such as the social justice, which only can be real at a State that can implement a comprehensive and permanent social and economic development. The freedom of concurrence tries to valorize and defend something larger and consonant to the political values expressed in the Constitutional Charters with social character, which is the right to a social and economical sustainable development, guarantor of more clear and compromised collective benefits with social justice. The origin of that constitutional imposition is not only supported by vague orientations of the economic space, but as integrated to it, with basis formed of normative and principles posted and prepared to produce effects at the proper reason of the Constitution

Acordos internacionais sobre a produção compartilhada de recursos naturais: a unitização interestatal na área do petróleo e gás sob o enfoque constitucional brasileiro

The apportionment of natural resources between sovereign States is a subject that relates many aspects of International law, as long as Constitutional Law, at the execution and application phases of international treaties that regulates the exploration of common goods. In this sense, because of their natural characteristics that creates an environment of constant migration and fixation in transboundary regions, terrestrial or maritime, the petroleum and the natural gas bound a complex juridical apparatus that can control the sovereign rights involved. This research is aim at accomplishing a study concerning the international agreements that enable the non-unilateral action, specifically the unitization treaties between sovereign States, as a manner to resolve situations related to the individualization of oil and/or gas reservoirs that go across their national borders. These agreements will be analyzed considering the international public law sources theory, bearing in mind yet the already existed experiences in this sense, not disregarding the way that this fact could affect Brazil. It will begin with an historical incursion over the unitization institute, covering its main characteristics and its formation and execution procedures, and finally it will address the Brazilian legal system and the comparative law threats the institute. The clauses of these relevant agreements will be analyzed in details, concerning its particularities and its contents. Because these agreements are international obligatory rules of law, it is indispensable that they are considered under the auspices of the international law system, focusing their nature and the subjects of international law and establishing them as sources of the international law, analyzing them, then, as international rules and the applicable law to these juridical relations, the conventional established, the consolidated international custom and the applicable International Law principles, appearing the State s responsibility as an important subject for the verification of the acts lawful practiced by States. The analysis of the apportionment of these natural resources ends with the individualization of possible exploitable marine oil fields located between the exclusive economic zone and the continental platform ends and the region administrated by the International Seabed Authority. At last, the Brazilian constitutional system appears as the mechanism of integration, application and execution of the international unitization agreements in Brazil, detaching the format and the proceedings that the international treaties take to acquire validity at the national legal system, passing through the treaties interpretation and the applicable constitutional principles, coming to its application in Brazil, considering the existing constitutional peculiarities and the role played by the National Agency of Petroleum, Natural Gas and bio-fuel ANP

O princípio constitucional do desenvolvimento e a utilização de recursos hídricos na indústria de petróleo

As can be inferred by the title of its study The constitutional principle of sustainable development and the utilization of hidrical resources in the oil industry the transcribed pages are dedicated to the approach of the mentioned subjects which, despite being apparently different, will be shown intrinsically connected as goes by the study. The superation of this first step by the reader will lead to an important perception of the title: that the situation requires, urgently, a defined posture, a complete conduct change and, therefore, a modification of the paradigms currently establisheds. To brake barriers, modifying what is lived by, is the ultimate goal. For that, there is no unique path, linear, but there were broached the development themes, the hidrical resources theme and oil and natural gas industry at the necessary points to achieve, by the end, a comprehension for the Brazilian Federal Republic goals in the search for the application of these juridical norms. The ones whom lay down over this study shall notice that, more than a simple approach over these themes (which are still less worked and searched in Brazil), the heavy critic of an instituted and pacifically accepted reality, directly offensive of the constitutional principles. The debate evolves from punctual and specific aspects, it gains life, flies, searching how the juridical order equalizes the economic model to the environment defense. Standing by the possibility of conciliation among constitutional principles, the remodeling of an economic segment is defended, aligning it to the sustainable limits. Development, sustainable, becomes means and goals to the implementation of liberty, capacitating everyone to achieve their goals of life, their libertments, fruit of the inherent antagonism of the Constitution the sustainable development offers, while an axiological vector, a new reality to the economic order, turning it into a motriz element to the fortification of constitutional normative force and for the national development

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

A intervenção estatal no domínio econômico privado através da nova lei de recuperação de empresas e falências (lei 11.101/05)

Analysis of the elements of the Constitutional Order of the letter 1988 politics, with emphasis in the principles of this, a study on the intervention of the State in the private initiative by means of the Law of Recovery of Companies and Bankruptcies (law 11.101/05). New enterprise vision is admitted, over all in the interdependence between economic and social factors. Study on the globalization and the interdependence of economic and legal sciences in the construction of a legal optics in the search for the economic and social development, with the recognition of the interference of the Economy in the Right and its uneven importance. Still, we delineate the state intervention in the economic scope, of company and in the judicial recovery, as well as the consequences of such intervention in the involved credits in the judicial recovery and patrimony of the debtor in recovery. For such task, the elements of the Judicial Recovery, its principles and adequacy of these to the related ones in the chapter had been analyzed that turns on the national economic Order, describing the formal procedure for concession of the benefit of the Judicial Recovery and the principles in existing them. The forms of intervention of the State in the private economy were not disrespected, relating its direct and indirect performance as half of preservation of interests writings in the constitutional scope as public interest and preservation of the National economic Order. The regulating agencies as of direct state intervention were half not disrespected of the study for the relevance of the subject. It is revised national bibliography with incursions in French, Portuguese and North American comparative jurisprudence. One contributes in the aspect of the paper of the Judiciary Power in the protection of the companies in crisis and the social and economic impacts, over all in relation to the rights of the worked ones, credit and enterprise

Participação administrativa processual na administração pública dialógica

The dissertation, which is based on the deductive method, by using general concepts of the theory of the administrative participation in the administrative process, addresses the importance of strengthening administrative and procedural activities of citizen involvement in public administration for the administrative consolidation of democracy in Brazil. The emergence of Administrative Law has particular importance for the understanding of its institutions and, of course, for the different fields of public administration. The authoritarian profile of this area of law still exists as a clear recollection of their origin, mainly based on a relationship of superiority of the state over the individuals. Indeed, does not even modern constitutionalism could print a true democracy administrative, since the constitutions were not properly observed by the Government. Furthermore, only the process of constitutionalization of administrative law legal relations took a more democratic profile. That is, the creation of an environment of dialogue with civil society is a recent achievement of the Brazilian government. As the administrative process involves dilemmas and solutions of state action, because it is revealed the expression government, the strengthening of institutions and principles related to the administrative procedure is important for role in making a more participatory relationship between state and citizen. Thus, administrative participation can be considered not only a mechanism of control and legitimacy of state action, but also for improvement and reduction of administrative costs, as a requirement of the principle of efficiency. The objective of this investigation is to assert as the administrative legal relation, the administrative legality, the administrative jurisdiction, the processuality administrative, the consensuality administrative and administrative justice, together with administrative participation, can contribute to a more democratic role of the Public Administration and, therefore, more dialogic and consolidator of the fundamental rights of citizens. Therefore, we highlight the importance of the administrative process and administrative participation as mechanisms for improving public policy and thus as a means of reducing administrative costs mediate the state

Defensoria pública e sua legitimidade à tutela jurídica dos direitos humanos

The realization of human rights is a prerequisite to the development of peoples, this requires legal mechanisms and techniques to its consistent and effective promotion, protection and fulfillment. So, agree that there is an institution or public agency created for the purpose of protecting those who suffer most in the face of human rights violations: the needy. In Brazil, among other institutions and public agencies, the responsibility of the Public Defender to promote the protection of human rights. The constitutional system recognizes the institution in its essence the role of the state court, whose duty is to provide guidance and legal defense of the needy. The legal system as a whole sufraga the relevance of the Ombudsman as a mainspring of human rights. In the prison system, with the ultimate regulatory changes, such as Law 12.313 of 2010 which introduced changes to the Law 7.210 of 1984, the institution must ensure the correct and humane enforcement of sentences and the security measures pertaining to the needy. With the Complementary Law 132 of 2009, to systematize other duties of the Public Defender, highlighting their contribution to the movement of access to justice. Within the OAS, to adopt Resolution 2656, 2011, characterizing, with ruler and compass, the relevance of the Ombudsman access to justice and protection of human rights. In this step, the present study concerns the role of Defender in the legal protection of human rights, through monographic and deductive methods, as there remains a technical and theoretical connection between these two points themed legal phenomenon, since the rights humans, especially after the second half of the twentieth century, form the basis of the legal system of the major Western nations in the world. This led, therefore, the emergence of technical and legal institutions aimed at realizing human rights. This applies to the Defender. Access to justice and public service provision of legal assistance are human rights, therefore, essential to humans and necessary for social inclusion. Countries such as Brazil, marked by social inequality, depend on the structuring of institutions like the Defender, designed to promote citizenship to the Brazilian people

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

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

A responsabilização criminal no estado democrático de direito: o equilíbrio entre a efetividade e os limites da pretensão punitiva da sociedade

This paper analyzes the relationship between fundamental rights and the exercise of the claim punitive society in a democratic state. It starts with the premise that there are fundamental rights that limit and determine the validity of all forms of manifestation of the claim punitive society (legislating, investigative, adjudicative or ministerial) and there are others that require the state the right exercise, fast and effective of these activities. Travels to history in order to see that the first meaning of these rights was built between the seventeenth and eighteenth centuries, after all a history of abuses committed by state agents in the exercise of criminal justice, and positively valued in the declarations of human rights and proclaimed in the constitutions after the American and French Revolutions, while the second meaning has been assigned between the nineteenth and twentieth centuries, when, because of the serious social problems generated largely by absenteeism state, it was noted that in addition to subjective rights the individual against the state, fundamental rights are also objective values, which trigger an order directed the state to protect them against the action of the offending individuals themselves (duty to protect), the mission of which the State seeks to discharge, among other means, through the issue of legal rules typifying the behavior detrimental to such rights, subject to penalties, and the concrete actions of public institutions created by the Constitution to operate penal law. Under this double bias, it is argued that the rule violates the Constitution in the exercise of the claim punitive society as much as by excess malfere fundamental rights that limit, as when it allows facts wrong by offending fundamental rights, remain unpunished either by inaction or by insufficient measures taken abstractly or concretely provided

A Servidão Administrativa e o Estado Regulador: Compatibilidade com o Princípio Constitucional da Legalidade e a Limitação ao Direito Real de Propriedade

The economic changes occurred in the 90s, with the restructuring and privatization of various sectors of the economy have led to a redefinition of the State role, assuming a position of regulator and supervisor of public services in place to direct its role as straight intervenor. It is through the regulatory agencies, autarchies with special legal personality under public law, that the Regulator State will act. In this context, the first objective of this research is to analyze the legality of easements imposed by entities of the Direct Administration and Regulatory Agencies, whose execution is delegated to legal persons of private law, being those public service companies or mixed-economy societies. This examination in question the limits of servitude as a restrictive institute of property rights, observing the principles of function, supremacy of the public interests over the private ones, legality and the separation of powers. Defend the property rights like a fundamental right and your insurance as determining factor of economic development and social justice. Use the procedure in use will be the historiccomparative procedure, in order to demonstrate the legality of the public act as a maximum attempt to preserve the balance between the expansion of public services in various sectors of the economy, and the preservation of property rights, through regulation

A Dimensão objetiva dos direitos fundamentais: conceito e sistematização

This paper is about the objective dimension of fundamental rights, aiming to present a concept well-designed for this dimension, and establish a systematic teaching of the subject, presenting the developments of this dimension of fundamental rights. The objective dimension of fundamental rights arises related to the idea of linking the state of fundamental rights, transforming these rights as the foundation and purpose of the state. It is distinguished from that perspective of the subjective dimension of fundamental rights, which includes the fundamental rights in an individual-state relationship. Under the subjective prism, rights are seen as limits required by the individual, the state intervention in the lives of individuals. A new dimension goes beyond the perspective of the rights of the individual as a mere resistance in the face of the state, assigning those rights also an active mission, which generates a series of legal repercussions. These developments or "effectiveness" the objective dimension are studied. The first consists of Binding Effectiveness, and demonstrated a new respect for fundamental rights within the state structure, which creates concepts such as "linkage of state functions fundamental rights" and "state s duty to protect". There is also the Radiant Effectiveness in which are examined topics such as the "constitutionalization of Law" and the "application of fundamental rights to particular relationships". Studies are still Procedure Effectiveness, in the case of "objectification of the mechanisms of protection of fundamental rights" and "opening of the processes of state protection of fundamental rights to public participation"

Animais não humanos: a construção da titularidade jurídica como novos sujeitos de direito

This work has the main goal on the recognition of the inherent value of nonhuman animals, under the constitutional framework. It is presented the main philosophical formulations of the current pattern of behavior that rules the relationship between man and animals: first those that have excluded animals from moral consideration and then the thinkers which do have included, in some way, in order to elucidate the origin of the anthropocentric thought over the natural world. In this way, the analysis these thinkers that have included animals in moral consideration will contribute to a paradigm change from the anthropocentric view, initiating legal debates. It will be made a simplified analysis of different philosophical and legal points of view that have been demonstrating the posture in which the human beings have been dealing with the environment, with the replacement of the anthropocentric thinking for the biocentric view, in which life becomes the center of existence. Life is life, no matter whether it is human or not, has a value in itself, and must be protected and respected by the legal system. Then, it will be analized the constitutionalization of the nonhuman animal dignity in comparative law; the infraconstitutional legislation which concerning the intrinsic value of all life forms and, finally, the 1988 Constitution. It will be advocated for non-human animals the condition of subjects, presenting some cases that the Habeas Corpus was used in animal defense. In this new Brazilian Habeas Corpus theory of for apes the argument of genetic proximity was used in order to overcome the literal meaning of natural person to achieve hominids in order to assure the fundamental right of physical freedom. It is realized that the fact that the great apes being recognized as a person does not preclude the possibility of other living beings be recognized as subjects of law. In this way, animals can be considered non-human subjects of law, according to the theory of depersonalized entities and may enjoy a legal category that allows a respect for existential minimum, and can hold constitutional fundamental rights