A construction como método concretizador de direitos fundamentais: aplicação na jurisdição constitucional brasileira

The way of organization of the constitutional jurisdiction implies the possibility to extend the democratization of the same one in function of the popular participation in the active legitimacy to constitutional process (procedimentalist model) e, at the same time, to assure technical viable decisions fast and to the complex problems of the constitucional law (substancialist model). The comparison with the constitutional jurisdiction of U.S.A. becomes interesting from the knowledge of the wide power to decide experience of Supreme the Court that for a methodology of construction of rights and not simply of interpretation of the Constitution, brought up to date and reconstructed throughout its historical evolution the direction of the norms of basic rights and the North American principles constitutional. Construction while constitutional hermeneutic method of substancialist matrix works with techniques as the measurement of principles, the protection of interests of minorities and the entailing of the basic rights with values politicians, what it can be brought to evidence of the Brazilian constitutional jurisdiction in order to improve the construction of basic rights that comes being carried through for the judicial ativism in control of the diffuse and abstract constitutionality. To define the limits of construction is to search, on the other hand, a dialogue with the procedimentalists thesis, aiming at the widening of the participation of the citizen in the construction of the basic rights for the constitutional process and to argue forms of the society to evaluate the pronounced decisions activist in the controls diffuse and abstract of constitutionality

Paradigma constitucional brasileiro da livre concorrência e da defesa do consumidor face às estruturas de poder no mercado

The Federal Constitution of 1988, when taking care of the economical order, denotes special concern in the abuses of the economical power and the disloyal competition. The mark to mediate of all this is, in fact, the defense and the consumer's protection, once this is final addressee of whatever if it puts at the consumption market. The coming of the Law 8.078/90, Code of Protection and Defense of the Consumer, inaugurates a time of effective concern with the homogeneous individual interests originating from of the consumption relationships. In this point, the focus of main to face of the present work lives, in other words, the protection of the right to the individual property, especially manifests in the exercise of the trade freedom that keeps direct relationship with the respective social function the one that is destined. The code of the consumer's defense doesn't just take care of this, but also of the other star of the relationships of the consumption. When affirming in the interruption VI of the art. 4th that the national politics of those relationships, finds ballast in the prohibition and repression efficient of all of the abuses committed in the consumption relationships, keeping inherent relationship-causality in the economical order, sculpted for the article 170 in the Constitution of 1988. In the generic plan, the mark of the present work is to question concerning the limits of the trade freedom and previsible collisions with protection norms and the consumer's defense, as well as factual convergences of those small systems, especially in what he/she refers to the innate interests to the suppliers. In the specific plan, we aspirated to identify the protection device-commands to the actors of the trade relationship, capable to guarantee the free competition in a global economy of market, seeking especially the Well-being, for soon afterwards, in an analytical perspective, to discover the possible applications that it holds the Federal Constitution, in headquarters of economical freedoms. It was observed that the consumer today doesn't need only of laws that their needs, fruit of the vulnerability that it is him/her meditate innate. He/she lacks, yes, of effective mechanisms that prevent lesions that can be them impinged by the suppliers at the time in that you/they are useful to repair the damages when happened, punishing the author of the damage

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

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

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

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

A boa-fé objetiva na concessão dos incentivos fiscais / Humberto Antônio Barbosa Lima

This essay analyzes tax incentives concepts and existing discussions on national and foreing doctrine, especially in countries that influence our legal culture, such as Germany, United States of America, Spain, Italy and England, providing a detailed study about the requirements that must be observed to ensure that there be a legitimate concession of the same. All this using as argument the Constitutional Charter and the development of the Law, mainly through the principle of objective good faith, which acts as the limiting principle of administrative discretion in granting such tax incentives, as well as creative element of the new duties for the public managers in order to be more effective, efficient and transparent compliance with the pact between the government and society and the objectives pursued by the last. Always chasing a strong argument through a broad historical and philosophical analysis of the institutes discussed. Thus, through studies that reveal the necessary incidence of objective good faith in granting tax incentives to achieve the constitutional purposes, this work does not merely disclose what is wrong, but provides solutions to modify reality hitherto existing, ie, introduces ways to reduce the encumbrance of the odious and ineffective tax incentives in society and to redirect these values unjustly destinated for obscure interests to achieve the real reasons for the existence of tax incentives, especially economic development through the reduction of regional and social inaqualities and poverty eradication

O piso salarial nacional: a valorização do professor na Constituição de 1988

The paper investigates the legal mechanisms used by the Legislature and the Executive to implement the constitutional principle of the teacher s minimum wage, which is proclaimed in the Constitution as a strategy of professional appreciation for this category. The text demonstrates that the legal mechanisms used to value the teacher were: the 1988 Constitution, the constitutional amendments to this Charter updated and modified the original text in relation to the matter, and finally, the Minimum Wage Law . Article nº 206 of 1988 s Federal Constitution established that basic education teachers, who work in public schools, would be entitled to a national minimum wage. Law nº 11.738/2008 ( Minimum Wage Law ) regulated the matter and made other determinations on the relationship between the State and the teachers such as the establishment of parameters for the distribution of the workload of teachers. Based on this law, since 2009 the minimum wage has been set annually by the Federal Government. However, state governments and municipalities throughout Brazil protested prescriptions contained in the Minimum Wage Law . In this context, some governors and mayors led the Supreme Court regarding the constitutionality of this law. The complainants considered that there was unconstitutional by the following: definition of the teacher s workday, which in the complainants point of view was competence of local governments; ensuring that teachers receive salaries tied to the minimum wage with retroactive effect; transformation of the minimum wage in basic salary, lack of sufficient budget in the states and municipalities to honor with the new values to be paid to teachers and, finally, determining workload for the teacher to perform other activities besides classroom activities. At the trial held at the STF the majority of Ministers rejected the claim and considered that the Minimum Wage Law , taken together, was constitutional. However, this decision did not alter the position of the managers or the interpretation of the ministers who agreed with the unconstitutionality of some aspects of the law. This means that one law can present differences in interpretation between ordinary people and among members of the Judiciary. The search showed the following conclusions: the law is not a definitive parameter of justice, because it is deeply linked to various interests; the development, implementation, and judgment of laws dealing with minimum wage of teaching are linked to historical and cultural aspects of society; the demand for enhancement of teacher and setting a minimum wage has only emerged in the late twentieth century, a fact explained in this work based on data that indicate the recent concern of Brazilian State with schooling a phenomenon typically Republican and with the professionalization of teaching emerging concern from the knowledge society; the Legislative and Executive search mechanism to implement the minimum wage of the teachers because of the contemporary need for professionalization of teaching

Teoria da despesa pública: uma leitura ético-constitucional em busca do possível da reserva

Brazilian law passes through a crisis of effectiveness commonly attributed to the extravagance of fundamental rights and public shortage. However, public finances are not dogmatically structured to solve the conflicts around the limitations of public spending. There are ethical conditioning factors, like morality, proportionality and impartiality, however, these principles act separately, while the problem of public shortage is holistic. Also, the subjectivity of politics discretionary in the definition of public spending, which is supported in an indeterminate concept of public interest, needs material orientation about the destination of public funds, making it vulnerable to ideological manipulation, resulting in real process of catching rights. Not even the judicial activism (such as influx of constitutionalism) is shown legally appropriate. The Reserve of Possible, also presents basic ethical failure. Understanding the formation of public shortage is therefore essential for understanding the crisis of effectiveness of state responsibilities, given the significant expansion of the state duty of protection, which does not find legal technique of defense of the established interests. The premise of argument, then, part of the possibility of deducting minimal model ethical of desire to spend (public interest) according to objective parameters of the normative system. Public spending has always been treated disdainfully by the Brazilian doctrine, according to the legal character accessory assigned to the monetary cost. Nonetheless, it is the meeting point between economics and law, or is in the marrow of the problem of public shortage. Expensive Subjects to modernity, as the effectiveness of fundamental rights, pass necessarily an ethical legal system of public spending. From the ethical principles deducted from the planning, only the democratic principle guides the public spending through the approval of public spending in the complex budget process. In other words, there is an ethical distancing of economic reality in relation to state responsibilities. From the dogmatic belief of insufficiency, public spending is evaluated ethically, according to the foundations of modern constitutionalism, in search of possible of the financial reserve, certain that the ethics of public economy is a sine qua non condition for legal ethics.

Narrativas de Formação de Professoras dos Anos Iniciais do Ensino Fundamental:Concepções e Construções de Necessidades Formativas na Geografia Escolar

This article is about a study about the training needs for teachers of elementary school in the field of Geography. It is our objective to grasp their conceptions of training needs and reflect about their formative needs to teach geography. We consider the training as reflective process that involves the movement of changes and improvement beyond of formal learning, considering its numerous dimensions. We reflected about formative needs in light of the readings of Rodrigues Esteves (1993), Silva (2000), Roberts (2006), Vieira (2010). The discussions about conceptions were based on Ferreira (2007). The empirical reference constitutes to a private school in the city of Ceará-Mirim/RN, SECAT Centro de Ensino. The social subjects of our research are five teachers who work in the initial years of elementary school. We resorted a survey (auto) biographical, based on the studies of Passeggi (2011), Delory (2008), Bertaux (2010) e Josso (2010), since it is our intention to turn to the historicity of the subject and the learning, recognizing the links between him and the world and the experiences based on for learning and adult training. As technical and methodological procedure we will use the Training Narratives, whose application allows the understanding of memories and stories of schooling teachers, since are reported events occurred during the development of the individual through seminars Biographical. We observed on the narratives constructed by the teachers the absence assignments of meanings to a reworking of the theoretical formative needs and questions of its organizing principles. However, we notice the teachers were able to develop senses and means to conceive the phenomenon in study, in a descriptive way, through articulated enunciations, including aspects and opportunities linked to their teaching practices and future formative prospects. Regarding School Geography, we based our studies in the reflections of Smith Junior (1994, 2000), Tonini (2003), Vesentini (2004) and Vlach (1991), among others. We verified that the needs evidenced by the teachers to teach geography were constructed from the contexts of their teaching practices present in their school and professional trajectories. Therefore, we noticed the need for formal pedagogical qualification so that we can conceive the phenomenon in study beyond its descriptive character, understanding that it is necessary to point out reflections and questions about the dynamics of production of global capital, which conveys its interests in the contexts that often emerge formative needs of the educational system

Responsabilidade civil como função social na distribuição e revenda de combustível face ao direito do consumidor e ao meio ambiente

The civil liability of the distribution and retail fuel stems from the fact business activity developed to be high risk and can be said as risk inherent or latent danger that has predictability and normality characterized by placing the consumer in a position of vulnerability, such as the environment, both public policies defined and constitutional protection. Consumer protection as a fundamental right and the environment as the primacy of social order aims the welfare and social justice, as inserted right to the third dimension, are guarded by the State when it creates operational standards through public policies and indirectly intervenes in the economic order. This intervention is due to consumer protection and the environment are economic order principles, founded on free initiative and free competition, ensuring everyone a dignified existence which underlies the irradiation of fundamental rights in private initiative, before the commercial evaluation, mass consumption, the emergence of new technologies that link consumers to the environment before the protection of life, health and safety and ensuring a better quality of life for present and future generations. To repair this damage and the right to information are provided as fundamental rights that put the person at the epicenter of the relations and collective interest stands out against individual interests that to be done need public-private partnership. In such a way that the used methodology was an analysis of documents correlating them with bibliographic sources whose goals are to recognize the civil responsibility as limit to subjective right, having to develop a social function where guilt and risk grow distant and the damage is configured as a consequence of inherent risk, requiring the State interventional postures in fulfilling its public policy; prevailing in these risky activities the solidarity of those involved in the chain of production and socialization of damage forward those are provided directly of products of hazardous nature that put in a position of vulnerability the environment and the consumer

Caminhos e descaminhos dos municípios produtores de petróleo: o papel dos royalties no desempenho das finanças públicas municipais no estado do Rio Grande do Norte

It analyzes the magnitude, the nature and the direction of public revenues and the public expenses in oil and natural gas producing municipalities in the state of Rio Grande do Norte in the post-constituent period, and, more precisely, from the approval of Law 9.478/97, called Oil Law . It argues the fiscal federalism normative theory, the typology and the role of the intergovernamental transferences in the performance of the public finances of the local governments. Shows that the economy of Rio Grande do Norte went through deep social-economic changes in the last few decades, among which includes the discovery of the oil and the natural gas and its importance for the growth of the industrial and services sectors. It points out that the increase of the production and the international price of the oil contributed for the growth in revenues of royalties and the special participation in the beneficiary cities, what did not mean an automatic increase in the resources destined to the investment and in the quality on the provision of the goods and services come back toward the local development. On the contrary, the main conclusion of the work is that the trajectory of the oil producing municipalities is marked by paths and embezzlements in the performance of the public finances and in the provision of public goods and services. Paths, that lead to the improvement of the performance of the public finances and the quality of the public goods and services. Embezzlements, that lead to the inefficiency in the provision of goods and services and the capture of the public resources. That is, the fiscal decentralization is a necessary condition, however not enough to improve the amount and the quality of the public goods and services given by these municipalities. For that it is necessary to advance in the fiscal federalism normative theories, in search of optimum model of federalism in local governments where still predominated by patrimonialism, clientelism, fiscal illusion and the capture of the public resources in benefit of the private interests

Diálogos e reflexão

The present work highlights the importance of Dialogue in dealing with situations of crisis, and human conflicts. It has a starting point in some ideas of David Bohm, and in so doing, it presents itself with the challenge of testing the premise that dialogical strategies, of thought and action, can make the human choices inherent to those situations, more coherent and creative. They also allow us to elucidate and grasp them, towards broader comprehension and resolution, while keeping the framework of consistent assessment. However, we believe that said strategies are not, necessarily, problem solvers. With that in mind, we expanded the notion of Dialogue , systematizing dialogical visions of the world, derived from the ideas of David Bohm, Paulo Freire and Mikhail Bakhtin, in which they give priority to the Dialogue component, in all human relations within crucial contexts. From the elaboration of that systemic and dialogical interface, in which Dialogue appears as common theme, and pervasive tool, we detected the emerging of ancillary themes such as Liberty , Consciousness , Creativity , Ethics and Responsibility . We see these themes as ways of comprehending Life, as each one embodies interests, needs and shared human motivations. We have articulated them as a network, and added to that the need of Reflection in conjunction with Dialogue as a watchful call for noticing the incoherence

Universidade e educação ambiental

The society consists of the inter-relations between diverse symbolic fields of performance, where some agents if identify for values, habits and goals. The present thesis analyzed, taking for base the Theory of the Social Field of Pierre Bourdieu, the ambient field and the university, leaving of the principle that the university is one of the propitious places for the quarrel, study, knowledge elaboration, and that the ambient education is one of the ways of dissemination of knowledge and action in favor of the ambient question. It was looked to contextualize and to identify the main factors that configure the university while a social field, and to evidence the conflict and connector links with the ambientalism. It is perceived university as space of tensions, whose produced capital stock in the academic scope must be enough convincing in the direction of the social transformation, of the expansion of conscience, the critical matureness, and thus to appear as agent of social transformation. The joint between the diverse social fields, promoted for the university, will be able to contribute for knowledge formularization that can consist base for elaboration of politics and programs to answer to the problems of the society contemporary. It has the inter-relationship between the two fields, however, this relation still is fragile, needing that a continuity practical social that they make possible that the ambient question is part of the culture of the university. This will be able to give with the intensification of the actions and the inclusion of the ambient questions in the communication mechanisms and administrative management. To surpass discontinuities caused for changes of groups leading and for interests politician conjunctural are necessary that they create habitus, what passes for the institutionalization of practical and the constitution of a culture that the agents allow if to reorganize defending the interests of social transformation front to the economic interests, as much in the university how much in the ambient field

O Probásica e a formação de professores no Pólo de Parnamirim: política de formação profissional no Rio Grande do Norte?

This work studies the thematic of the politics of formation of teachers in the Program of Professional Qualification for Basic Education (PROBÁSICA) developed in the City of Parnamirim, Rio Grande do Norte. It has as its main objective to identify and to analyze the contribution of this politics of initial formation for the professional formation of teachers. To install the work, we will use the procedures of bibliographical research, documentary analysis, comment, structuralized interview, questionnaire-script and virtual research. In the analysis of the data, we trace a general view on PROBÁSICA while initial formation along with the continued formation, pedagogical research, collaborative research and the exercise of the teaching profession, identifying the possibilities and limits of the Program in the direction to reach the objective considered in this work. From the inquiry, we construct the institutional land scope of the program in question, also focusing, the organizational aspects of its functioning. We have to take care about the results, we evidence that PROBÁSICA is making the possible to access of the teachers in the educational service to the University, what the main aspect that consists, trying to prove eminent weak points in its systematic due to give to the organizational structure of this educational politics that does not count with curricular, institutional and financial the necessary conditions for the success of the professional formation of the teachers. The research will try to understand that the operationalization of the politics of formation in Parnamirim will be belong with it the main idea of the Educational Reformation in years of 1990, articulated to the neoliberal interests, that the responsibility for the problems of the public system of education attributed to the teachers, and that are not answered completely through the purpose of the professional formation, and ti seems that it does not define one global national politics that deals with seriousness to the questions the initial formation, permanent formation, pedagogical research, , career and conditions of work for the teachers

O processo avaliativo institucional de desempenho do sistema público municipal de Teresina-PI (2001 a 2005): entre a lógica da excelência e a lógica da aprendizagem

This work focalize the institutional and educational evaluation, aiming to investigate the Municipal System Institutional Evaluation Performance of Teresina City Piauí (2001-2005), and to reflect about Institutional System Performance and its contribution to compose a new learning evaluation practice. In this sense, classifies elements about the evaluation practice in two Elementary Education municipal public schools, involving Education Municipal Bureau technicians as managers, pedagogues, teachers and students. Based on the ethnographic studies principles in the educational area, the work employs investigative procedures like document analysis, interviews with groups and individuals and also participator s comments. Intending to comprehend the complexity produced by the institutional and education evaluation processes, the wok reveals the Institutional Evaluation legal and educational political basis and the several positions assumed by the Learning Evaluation, as a classification tool or as a learning enhancement. This work points, as results, to a evaluation culture bipolarity carried out by the Municipal Education System as a explicit control and regulation toll, related to the classification and learning in a interaction process that operates both in the pressure and the reflection, as a culture practice established between excellence of logic and learning. The evaluation history has been construct on the evaluation actions dialectics, joint simultaneously between the Institutional Evaluation Performance and the learning evaluation. The senses, meanings and actions bipolarity is a interaction process product sustained between the institutional evaluation, under the scholar ranking application, and the learning evaluation. In this relativity, the teacher evaluation practice is found, ruled by interesting, thoughts and actions on the school evaluation, allowing a higher security and support to the learning results. Grounded in the researched reality, its possible to say that the teacher s evaluation practice is diversified, with different characteristics, when it is done in the learning search and in the learning intention. In the first case, reflects, rearranges and constructs new actions that lead the student to produce learning. In the second, shows the will, the wish of learning, but is a weak action, producing a not really significant learning and development; as a result, remains the mark approach as a determinant in the student future. The work s hope is to contribute not just to rethink these two evaluations dimensions the institutional and the learning ones but also to organize the school and to improve the pedagogic process