Teses em Direito (Doutorado) - PPGD/ICJ

URI Permanente para esta coleçãohttps://repositorio.ufpa.br/handle/2011/6401

O Doutorado Acadêmico em Direito pertence ao Programa de Pós-Graduação em Direito (PPGD) do Instituto de Ciências Jurídicas (ICJ) da Universidade Federal do Pará (UFPA). O curso de Doutorado foi aprovado e implantado em 2003. Para a elaboração da proposta, buscou-se identificar temas comuns desenvolvidos pelas duas Áreas de Concentração, para fundi-las em uma única, o que resultou na criação da Área “Direitos Fundamentais e Relações Sociais”. Atualmente, o Programa oferta cursos de Mestrado Acadêmico e Doutorado (único da área de Direito na Amazônia), e se estrutura em torno de uma única Área de Concentração: Direitos Humanos. Possui cinco Linhas de Pesquisa: Constitucionalismo, Políticas Públicas e Direitos Humanos; Direitos fundamentais: concretização e garantias; Direitos Fundamentais e Meio Ambiente; Estudos Críticos do Direito; Sistema penal e Direitos Humanos. Sua missão é formar profissionais que, compreendendo a realidade local, rica em recursos, mas ainda com baixos índices de desenvolvimento econômico e social, trabalhem para transformá-la. Para isso, objetiva ofertar sólida formação teórica, aliada à competência política e social.

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Acesso aberto (Open Access)
Os direitos humanos de acessibilidade e locomoção das pessoas com necessidades especiais: a realidade paraense, com ênfase em Belém/PA
(Universidade Federal do Pará, 2008) RAIOL, Raimundo Wilson Gama; BRITO FILHO, José Cláudio Monteiro de; http://lattes.cnpq.br/7823839335142794
It presents the problematic daily faced by people with special necessities toward the archtecturing barriers in building destinied for public use and in collective transportation means, as well as toward the lack of accessible equipment and elements of the urban facilities. It makes use of survyed data about the people mentioned above. It analizes this problematic under the focus of human rights. It points out the indispensability of eliminating or adaptating the barriers mentioned above. It shows how the issue is dealt with by the international rules and how it is substantiated in national and state constitutional rules, in town organic laws and in infraconstituinal legislation specific in federal, provincial, and town levels, as well as in technical rules. It presents the precariousness of the physic-environmental structures, mainly in the town of Belém, State of Pará. It contains proposals for the maintenance of the accessibility and locomotion rules of the people involved and the concretion of these human rights.
Acesso aberto (Open Access)
Povos e comunidades tradicionais da Amazônia Legal: análise das normas jurídicas de acesso aos territórios e aos bens ambientais
(Universidade Federal do Pará, 2009) LOPES, Syglea Rejane Magalhães; MATTOS NETO, Antonio José de; http://lattes.cnpq.br/4719479439779242
This study examines the right of accessing areas by people and traditional communities and the right of accessing environmental goods located in traditional territories in the light of the1988's Constitution and the "legal rules". The research's approach focuses on the Legal Amazon and uses as an example the State of Pará. The analysis focuses on three categories of peoples and traditional communities: indigenous peoples, remnants quilombos' communities and traditional extractive communities, located in conservation units (RESEX, FLONA and RDS) and PAE. It is a critical examination of legal institutions that guarantee the people and communities access to traditional territories and tools that allow the use of environmental goods located in their territories. The survey results emphasize the importance of standardization and regulation, based on the collective right of access to areas by people and traditional communities, as well as access to assets located in those territories, believing that peoples and traditional communities make the national environmental heritage – ecologically balanced environment. It is behind the resistance to such regulation or regulations, the maintenance of spoliation, both externally, from the North on the southern countries, as internally, by dominant groups for groups controlled.
Acesso aberto (Open Access)
Ultrapassando fronteiras: a proteção jurídica dos refugiados ambientais
(Universidade Federal do Pará, 2009) RAIOL, Ivanilson Paulo Corrêa; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
The reader will find in this work an analysis of the institution of refuge, since its historical development in the international scenario up to its reflexions on internal juridical order. The refugee’s issue was studied according to the Globalization process. Also it was examined the situation of people spread around the world due to persecutions for several causes such as nationality, race, religion, political opinions, or just for belonging to a social group. Besides this work defends that the classical causes for recognition of refugee’s condition do not fit in the reality of the new political overview established especially from the effects’ aggravation of a financial and economic model which ruptured with the Nation-State’s old limits. It also proposes to widen the concept of refugee in order to reach other hypothesis not included in Convention Relating to the Status of Refugees adopted in 1951. It defends the inclusion in the refugee’s condition those human beings who are victims of catastrophes, natural or man-provoked, in other words, the environmental refugees. It discusses the category of the internally displaced persons who, according to the Convention of 1951, are not considered as refugees neither to international organizations nor to the countries which belong to the international community. It proposes an unified concept of the term refugee which includes both the refugees of the Convention of 1951 and the commonly called internally displaced persons. Finally, it presents the consequences of the adoption of an unified concept for handling of refugees and internally displaced persons.
Acesso aberto (Open Access)
Legitimidade ativa na ação civil pública: um modelo independente de acesso judicial para a tutela de direitos fundamentais
(Universidade Federal do Pará, 2009-08-14) FREITAS, Marlene Rodrigues Medeiros; GÓES, Gisele Santos Fernandes; http://lattes.cnpq.br/1305423832262115
The advancement of science and technology in societies in development makes born a diversity of interests whose satisfaction is to be subject to risk prevention and the restoration of damage caused eventually by mass production, environmental pollution, degradation of nature, public services deficit, and others who may to sacrifice the company's present and future generations. The Brazilian Constitution of 1988 guarantees rights and set duties, individuals and collectives, for the realization of the Democratic State of Law, establishing mechanisms and procedures for the judicialization of the collective conflicts and public civil action, governed by the law n.7.347/85 is one of legal instruments of access to Justice with the goal to ensure the protection of fundamental rights can be used by different entities, public and private. Being the Public Ministry the institution which has the power to represent the company and defend the legal order, to its must be ensured sufficient autonomy to pursue the public civil action as a legitimated common. On respect the civil associations representatives of groups and communities in the defense of fundamental rights must be waived the requirement of time defined of its constitution to enter into legal proceedings, as stipulated in Paragraph 4 of art. 5 of these law, because the restriction reduces the scope of the fundamental principle of access to justice. Moreover, should be ensured to the citizen the active title on the public civil action in defense of fundamental social rights, since which is the citizen the representative to demand protection for life worthy of all men.
Acesso aberto (Open Access)
A eficácia das decisões de controle concentrado de constitucionalidade nos sistemas italiano e espanhol
(Universidade Federal do Pará, 2010) FREITAS, Juliana Rodrigues; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
The Italian´s and Spanish´s systems of concentrated control of constitutionality have features that distance them from the pure kelsen´s model and, at the same time, allow us to identify them with the North American´s model of constitutionality control. The assignment of binding effect, in horizontal and vertical planes, to the constitutional decisions, even if it is not an element used to identify, so immediately, the constitutional jurisdiction of the European countries, is, undoubtedly, one of its characteristic elements, and gives rise, in this context, to the figure of the previous binding. So for these precedents may be adopted in regard to the principle of equality in law enforcement, it is essential that requirements are defined in a reasonable and objective way, due to the Constitutional Courts gives effect binding to its decisions.
Acesso aberto (Open Access)
A interpretação da discriminação negativa no trabalho de acordo com o substancialismo
(Universidade Federal do Pará, 2011) PAMPLONA, Mário Sérgio Beltrão; BRITO FILHO, José Cláudio Monteiro de; http://lattes.cnpq.br/7823839335142794
The core of this thesis aims to analyze the Interpretative Theory which may extract the best conception of law on the Workplace Discrimination subject, referring to the analysis of legal discourses sustained by the theoretical aspects of the procedural legal rationality and substantive legal rationality, making the proper association with the Brazilian legal system, with emphasis on the fundamental constitutional principles and rights related to the topic. The substantial rationality shall be treated with substantial support in the fundamentals of law, living in a political morality shared and accepted in a society personified by ethical and moral principles, such as the fair treatment and respect to all and tolerance to diversity, which are rooted in the liberal-egalitarian scenario according to the concept adopted by Ronald Dworkin. In Chapter I, the taxonomy of Workplace Discrimination shall be discussed, dealing with this topic under the context of the fundamental rights, elements of the principles‟ theory and the public interest, revealing thus the nature of a difficult case. On the second chapter, the approach refers to the legal rationalization process when a court decision is to be given - turning evident the relationships between rationality and language, the relevance of the method, with emphasis to the topic‟s problematizing bias and systematic thinking. In chapter III, discussion will be made on procedural rationality according to Robert Alexy, considered the criticism addressed to both the topic and systematic thinking, on the aforementioned author‟s constructive process of legal argumentation theory. Fourth chapter focuses the substantial rationality according to the Ronald Dworkin‟s integrity theory, pointing out the principles of political morality which are the very foundation of the Law‟s integrity – which substantively may interdict the judicial discretion during legal interpreting, leading to a correct answer positively parameterized by the principles and fundamental rights.
Acesso aberto (Open Access)
A atuação do sistema interamericano de proteção dos Direitos Humanos na defesa dos direitos econômicos, sociais e culturais
(Universidade Federal do Pará, 2011) TEREZO, Cristina Figueiredo; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
This following doctoral thesis aims to study the performance of the organs of the Inter-American Human Rights System regarding the protection and promotion of the economic, social and cultural rights. For this, the research starts with considerations about what would be such rights, analyzing and refuting theories and concepts that have tried to refuse them as Human Rights norms, which would have motivated the development of vague normative provisions and the absence of monitoring mechanisms as well, as had been planned for the scroll of the Human Rights group, called civil and political rights. In order to demonstrate that economic, social and cultural rights are part of a fully justiciable rights group, the thesis also examines elements that are commonly attributed to them, such as: such as progressive achievement, prohibition of retrogressive measures, maximum available resources and minimum core content, from what is developed by the United Nations Committee on Economic, Social and Cultural Rights, to thereafter present how the organs of the Inter-American System deal with such issues. Of the study of international norms and of the monitoring international system, that were specially built for the economic, social and cultural rights, are verified several levels of legal obligation, of which proposes a classification for the different mechanisms to the access of the regional Human Rights Protection System, which can be directed to the supervision of a jurisdictional organ or quasi-judicial, or by other means that also promote those rights and allow redress in case of violation. The different mechanisms are used by organs of the Inter-American System to protect the economic, social and cultural rights. Due to its importance, the Commission and the Inter-American Court of Human Rights have been studied by this following research, attributing focus on its performance to the rights protection concerned, as well as recent modifications in their functions and procedural rites.
Acesso aberto (Open Access)
Para além do garantismo: uma proposta hermenêutica de controle da decisão penal
(Universidade Federal do Pará, 2011) PINHO, Ana Cláudia Bastos de; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
Assuming that, in Brazil, the theory of criminal justice is not consistent, the present work argues that the epistemology of juridical garantism, held by Luigi Ferrajoli, has limitations that separate it from the practical world, and therefore hinder the development of a theory able to limit the power of the criminal judge. Although the theory of guarantism gives special attention to the interpretive relativism, by proposing a technique of language's formalization to reduce situations of uncertainty, it still admits an insuppressible margin of discretion (always pro reo). The purpose of this thesis is the overcoming of this semantic model of perception of Law by a hermeneutic understanding of the juridical phenomenon. Based on the philosophical hermeneutics (Hans-Georg Gadamer) and the theory of Law as integrity (Ronald Dworkin), this research endorses the hypothesis that the Law is not the result of findings (conventionalism), neither of inventions (pragmatism). In other words, Law is not written somewhere in the past, neither is what the judges think it is. The Law is an interpretive social practice, it is the result of the best possible moral argument. By articulating relevant concepts of Gadamer (such as prior foundations of the understanding, merging of horizons, tradition, dialogue, experience, finitude and language) with the analysis of juridical integrity of Dworkin, this research - without the pretension of correcting Ferrajoli‟s garantism, but to overcome the eventual limitations of a semantic theory of Law - presents the hermeneutics as a privileged path to constrain the criminal decision.
Acesso aberto (Open Access)
Envelhecimento populacional e previdência social: a questão social da longevidade e o financiamento dos sistemas previdenciários, sob a ótica do princípio da solidariedade social
(Universidade Federal do Pará, 2011) NASSAR, Elody Boulhosa; BRITO FILHO, José Cláudio Monteiro de; http://lattes.cnpq.br/7823839335142794
The central theme of this work is population aging and its pivotal correlation to longevity and social security funding. The longevity that is so intensely pursued is a factor of concern in contemporary society vis-à-vis related social questions of oldness and social protection in the area of the social security. This work is divided in six chapters. The first chapter ponders on the correlation between the progression of time and its consequences on the decline of human beings, as a basic notion for the understanding of the oldness. The second chapter examines the meaning of the concepts related to aging as well as of the newly emerging expressions on the diversity of oldness by underscoring the use of chronological criterion as the parameter for the legal definition of the concept of the old. In the third chapter, the definition of the social issue of the aging is studied. This definition is examined through a statistical analysis related to the new and growing social group that requires adaptations of the civil society, the family and government. In this context, the condition of women is also treated by pointing out differences in the oldness between the genders. In the fourth chapter, the emphasis is on the social achievements related to aging in light of the legitimation and justification of social rights of Social Security as an effective means of social inclusion and achieving dignity at old age. In the fifth chapter, it is demonstrated that new social questions emerge from the aging of the world population. Consequently, new social, political and economic questions demand novel policies by the government in order to guarantee the quality of life of the aging as a fundamental human right. In the sixth chapter, solidarity is suggested as the fundamental postulate upon which the principles of social security are based. Moreover, solidarity is argued to be the central logic of any pension plan and that it conflicts with the logic of the market or science. This work utilizes extensive, interdisciplinary, national bibliography on the various issues contained in the chapters of the thesis, as well as foreign doctrine, with emphasis on the legal literature, as the base of support of the arguments above-mentioned. It is concluded that social security reforms and the neoliberal preaching defense of capitalization do not take into account the issue of equity in formulating policies for Social Security and that the State should be the main responsible for guaranteeing fundamental social rights. This thesis advocates that, in the case of the elderly, solidarity is an ethical requirement, and above all, an ethic of urgency.
Acesso aberto (Open Access)
Detenção agrária de terras públicas: implicações jurídicas na regularização fundiária
(Universidade Federal do Pará, 2011-12-16) BARRETO, Andréia Macedo; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
The present paper is about the legal treatment given to occupations of public land in rural areas, called land holding. Based on local observation, literature, cases law and legislation, we found out that the land holding does not confer the land possession or the property to the holder itself but it allows an adjustment of occupation with the government. The given situation deals with public lands, agricultural activity development as well as the importance of working on the referred land. Legal explanation relies on the Constitution interpretations which forbid this mean of property acquisition based on a single act of an individual as well as the legal situations that submit the permission for occupation to the Government acquiescence, through a regular administrative procedure. Besides it is based on agrarian laws which establish the needed requirements to the allocation of rural property in the public domain. Before the formal permission for occupation it may have set the land holding of public lands which has nothing to do with the matter regulated by our Civil Code. Areas occupied by indigenous, “quilombolas”, traditional agroextractive populations as well as the rural workers and their families do not fit this concept. For these ones, the Government assures the territorial and possessory rights. Therefore, we conclude that Brazilian legal system refuses public lands possessions in certain situations but it accepts them in others with both Government acquiescence and without it. Hence, the present work aims to establish distinctive criteria between land owner and holder proposing the stay of both legitimate owner and holder but the incorporation of the illegitimate occupied land to the public property roll.
Acesso aberto (Open Access)
A educação jurídica positivista e as diretrizes do ensino jurídico: currículo e prática pedagógica no curso de direito da UFPA no horizonte das competências e habilidades
(Universidade Federal do Pará, 2012) MORAES, Élcio Aláudio Silva de; COSTA, Paulo Sérgio Weyl Albuquerque; http://lattes.cnpq.br/4135075517359609
This thesis discusses the contemporary legal education from the perspective of the influence of the theoretical and methodological legacy of legal positivism on the organization of the law curriculum in Brazil. Specifically, it examines the political-pedagogical project of the UFPA law school and its curriculum, which is attached to theoretical dogmatism, clearly observed by the disciplines that follow the written law and by the unilateral pedagogy developed in class, predominantly based on lectures. The research focuses on the critical analysis of the National Curriculum Guidelines of Legal Education, which opted for critical, reflective and humanists abilities and skills, in contrast with the UFPA political-pedagogical project of its law course, organized in the traditional sense, in which persist dogmatic pedagogical practices, the teaching as transmission of knowledge, as verbalization of a content that prioritizes the formal rules and procedures, and that forgot the learning for emancipation.
Acesso aberto (Open Access)
Justiça restaurativa e violência doméstica cometida contra a mulher
(Universidade Federal do Pará, 2013) FABENI, Lorena Santiago; GOMES, Marcus Alan de Melo; http://lattes.cnpq.br/0371519214729478
This study aimed to analyze the phenomenon of domestic violence from a new perspective. Look crime of domestic violence committee against women as disruption of interpersonal relationships and not as violation of the state. This new lens is offered for Restorative Justice. This coming fab original practices, mainly from New Zealand, Australia and Canada, there fore, outside the official justice system is being adapted to new social context sin several countries. In Brazil it is introduced from the official justice system, through the Courts for Children and Adolescents. Use from the justice system ready provides major breakthrough, because how as a complementary tool that assist sin the realization of justice from those involvedandap proved by the Judiciary. The challenge, therefore, is to extend its use for crimes committed against women in the home, because there are sensitive issues in this area that need to be care fully highlighted so that does not corrupt your purposes. Restorative justice offers the possibility of treating domestic conflict from the meeting author, victim and community together to see ka possible solution to the conflict. It is there for approachingits concept, with a view that is in constant construction, to identify and analyze its manifestations, off era vision of some Portuguese and Brazilian laws, which mayor may not have spaces for your legal and theoretical location, to explain the phenomenon of domestic violence and their specificities, especially with the presence of patriarchy in Brazilian society. To the end to present an experience prosecuted the Court of Rio Grande do Sul, confirming the necessity and usefulness of restorative justice in domestic violence.
Acesso aberto (Open Access)
Áreas protegidas na Amazônia brasileira como instrumento de gestão ambiental: a situação do município de Oriximiná, estado do Pará
(Universidade Federal do Pará, 2013) FLORES, Maria do Socorro Almeida; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
Creating intervention restricted environments from the expansion of human activities was the model used by industrialized countries to preserve remaining ecosystems of their development process. Brazil adopted this restrictive model through the creation of protected areas, among other instruments. This thesis examines the establishment of protected areas as an instrument of environmental policy in the brazilian Amazon to use as empirical observation units the protected areas in the Calha Norte region, in the State of Pará, which corresponds to a region with low human impact and, as an area located in the endemism guiana region, high concentration of biodiversity, as well as the presence of considerable sociobiodiversity (indigenous civilizations, Quilombola communities and traditional populations). This thesis examines this issue considering the possibility to visualize in environmental management the sustainability of the biodiversity maintaining, which includes respectively the physical basis, the nature resources and the cultural, religious and indigenous peoples ways of life, the Quilombola remaining communities and traditional populations in the region. The primary goal of this thesis is to show that the legal protection of biodiversity and socio-biodiversity is intrinsically related to the concept of bio-responsability, which is based on a set of factors such as legal, political, administrative and economic establish relationships between them to ensure environment sustainability not only as a passive legal good, but as a dynamic allocation process, contributing with the elements to construction of a new meaning for the biodiversity protection, which includes especially the sociobiodiversity by considering the protected areas as one of the instruments for this conceptualization.
Acesso aberto (Open Access)
A plurifuncionalidade da segurança alimentar no meio ambiente como dever de solidariedade agroambiental
(Universidade Federal do Pará, 2013) BASTOS, Ronald Corecha; GOMES, Carla Maria Amado; MATTOS NETO, Antonio José de; http://lattes.cnpq.br/4719479439779242
This paper addresses the theoretical analysis of the multifunction in the Food Nutritional Security in the environment, which sustains itself as a duty of agri-environment solidarity. The paper was divided into three parts, each with two chapters, which were initially developed with the establishment of the context in which they are the subject in discussion, and finalized with comments on the main ideas studied until the preparation of final remarks, which shows the results achieved by it. Uses the theoretical methodology and inductive critical reasoning, because the study was part of an individualized phenomenon, the Food Nutritional Security, to display hypotheses that consider their effects and interactions with the natural environment, then to the end seek to generalize the solutions found, remarkably solidarity in its dimension of legal duty. Seeks to support the argumentation with bibliographic references and other scientific domestic production and foreign entities. Firstly, it discusses some reasons that led to the realization of the thesis, what are the major problems involving human ingestion in contemporary, displays the nearness to human rights, especially with the principle of solidarity and their multidisciplinary methodological characteristics that necessarily generates effects in various other fields of knowledge. Concepts executed by the United Nations Food and Agriculture Organization, especially regarding the right to food, right to be fed, food sovereignty, Food Security and innutrition, under nutrition and malnutrition are critically reviewed. Food Nutritional Security is considered in its multifunctional dimension because it necessarily involves ethical and legal implications related to human rights, from the theoretical idea of solidarity, which is studied from its old training, when united with virtue, to modernity and the closeness to politics and the law, understood in this principle that supports the legal duty bound to rational management of environmental goods geared to food, particularly in agri-enviroment law, perceiving solidarity as the foundation of rights, upper value qualified fraternity, while under relevant international human rights documents and in several constitutions. The diffuse interests are necessarily examined, because the Food Nutritional Security is a general interest of human society, and implies the preservation of food environmental goods, considered inseparable solidarity in view, which should be integrated into freedom and equality values, making more human principle interpretations, limiting its complete exercise and even justifying them. The idea of solidarity makes it possible to get the rights from agri-environment duty in the presence of the various theoretical approaches that deal with the legal duty, it is considered to be autonomous in relation to the subjective right, but translating duties linked to social purposes of public interest, that manifested in a democratic environment, and the agri-environment could be considered a phenomenon with public ethics background, with high environmental values, decisive in its legal dimension of obligations and responsibilities of all in relation to all, also national objective standards and international protection of agro-environmental goods. It is discussed that the public ethics allied to environmental ethics can be crucial in compliance with the law, merely beyond the outward persuasion, but likewise as internal manifestation ethics, which carries the sense of solidary legal duty connected to the multifunction of Food Nutritional Security. There are traditional arguments critiques about the future generation rights, for its vagueness and uncertainty that scientific gird up, and puts away from the possibility of appearing as an object of law are also prepared to settle the rights of spoken are accurately translated as present generation duties, these duties being the legal relationship between successive generations. Therefore, intergenerational solidarity is starting to have a continual legal bond, studied through the theory of fundamental rights, which gives it the fluidity characteristic between generations, and consequently requires the rational utilization of natural environmental resources, supported the principles and the precautionary information, the ethics of responsibility towards all generations, who demands the incorporation of long time in human actions, which enables the wide environmental education, and the development of unselfish thought, which considers the environmental boundary problems and limited natural environment assets, being indispensable the awareness of this generation and its political class to the statement of solidarity. Studying further that the duty of rational management of natural food environmental goods is the duty of solidarity, because it is considered that each individual uses an immaterial portion of this undivided collective good, which may be public or private, but that is submitted to solidarity. In this framework only prevails property rights in relation to their traditional qualities, the common goal of preserving food environmental goods does not provide a satisfactory basis for striking readjustment of activity, abstention from conduct, or even punitive accountability measures under objective justification. Finally, as a scientific contribution, this work presents an essay for the construction characteristics of the agri-environment solidarity duty, what are they, its object and subject, its structure, covering the nature of the obligations hereunder, and principal rules. The general conclusion is presented that the agri-environment solidarity duty shown by its occurrence Food Nutritional Security corresponds to the idea of justice and political morality, a phenomenon in which it is alleged a powerful connection between law and environmental ethics, relevant for understanding human conflicts and involving the use of natural environmental goods.
Acesso aberto (Open Access)
Ordenamento territorial e planejamento municipal: estudo de caso das limitacões supralocais à aplicação do art. 30, viii da constituição de 1988 pelo município de Parauapebas, Pará
(Universidade Federal do Pará, 2014) FISCHER, Luly Rodrigues da Cunha; ETIEN, Robert; BENATTI, José Heder; http://lattes.cnpq.br/6884704999022918
It aims to verify how municipalities can apply the Brazilian Legal System’s laws of territorial impact in a hierarchic, integrated and coordinated way to its planning. The scope of this analysis is limited to the Municipality of Parauapebas, in the State of Pará. This municipality fournishes a general overview of the existing legal problems in terms of land use in the Brazilian Amazon. It uses the empirical method and the case study technique. The result os this research is divided in four section. At first, it is analysed the exploitation and development projets in Amazonia since the colonial times, in order to demonstrate the changes operated in the legal system to enable the intervention of the State in the use of the territoiry. In the second part it is analysed the constitutional dispositions regarding the land use, urbanism, agrarian activities, mining and environment in order to identify the legal requirements to be followed by local planners. In the second section it is also analysed federal and State laws that influence the local planning, as well as supralocal instruments of territorial planning. In the third it is verified if the Parauapebas planning meets the supralocal legal requirements analysed in the previous sections. In the last section, it is analysed the European and French land use regulations are applied to the French Guiana in order to understand how the particularities of the Amazon region are regulated, but without the scope to compare the Brazilian and French systems. This analysis led to the conclusion that the Brazilian Legal System limits its land use regulation to the use regionalized planning instruments and sectorial polities of territorial impact, with few differentiations for the Amazon region, but there are not instruments to coordinate the effects of these policies ate the national and regional level. The municipality is the only level of the Federation legally bound to create a land use planning law. The local autonomy is conformed by supralocal laws and policies. The local land use planning and the exercice of the municipal police power are extensible to the whole territory, but they have different effects over it according to the existing land tenure.
Acesso aberto (Open Access)
A renúncia de receita onerosa como política extrafiscal afirmativa do acesso à saúde
(Universidade Federal do Pará, 2014) SILVA, Maria Stela Campos da; KZAM NETO, Calilo Jorge; http://lattes.cnpq.br/0615330668721075
This research involve financial legal, tax and administrative, especially with regard to public health policies. Based on the theory of the political philosophy of Amartya Sen's health, from the viewpoint that the state not only fulfills offer services to society, but must ensure that as many people as possible have access to such services that the fact comply with the needs of each; research, after enunciating the ways the state can waive tax revenue for through a policy extrafiscal attract second (companies) and the third (nonprofit corporations) society, identifies the legal forms that Brazil has been using since the last administrative reforms to attract the private sector to establish partnerships of various kinds for the alternative to him, offering more health for the population.At that stanchion the thesis raises some measures of internal and external control is exercised by organs that carry out these activities in Brazil, as the prosecutor, civil society, the Audit Courts to identify the key legal issues that these partnerships State and second and third sector face in the provision of health services.Finally, after a comparative analysis of structures with waiver of income on health in other countries , from research already undertaken in Brazil on certain species of resignation revenue for health, as studies of the Instituto de Pesquisa Econômica Aplicada (IPEA) and Regulatory Agencies area National Health (ANS) and National Health Surveillance Agency (ANVISA), correlating them to reports of analyzes of accounts of the federal government in recent years by the Court of Union, seeks to demonstrate the quantification of waivers in general revenue in relation to targeted health care to the end, suggesting to country implementation techniques that imply waiver of revenue in a mandatory direct consideration of the taxpayer benefited gaugeable the Public Entity.Thus,through exemptions costly attempts to demonstrate the possibility of circumventing the problems better legal waivers of free prescriptions in favor of increasing the distribution of health services in a more qualitative.
Acesso aberto (Open Access)
Direito de propriedade e justiça distributiva no Brasil: ampliação das capacidades como forma de combater a pobreza rural
(Universidade Federal do Pará, 2015) SÁ, João Daniel Macedo; TRECCANI, Girolamo Domenico; http://lattes.cnpq.br/4319696853704535
This work discusses property rights relations from the modern notion of distributive justice. It analyzes the extent to which rural private property constitutionally defined favors a notion of distributive justice compatible with the foundations of the democratic State based on the rule of law. It is based on egalitarian liberal thinking of John Rawls, to defend the role of justice in preserving the freedom of the individual, while considering that the value of dignity implies equal access to political, social, and, to some extent, of economic goods, that should be ensured mainly by the state. It is argued that in a just society, everyone should receive equal share of the benefits that society provides and of the costs that it requires. Supporting this idea, it is also based on Amartya Sen thoughts to argue that property right is intrinsically important, but also instrumentally valuable to enable individuals to achieve development. Further, the thesis argues that the classical liberal notion of property-liberty, which generates the absolute and exclusive power over the thing, and the social notion of property-duty, based on social function, converges on the notion of property-capacity, whose focus is on promoting real freedom of choice for individuals. The work will demonstrate that the State must, in order to fight rural poverty, and for the sake of justice, ensure more equitable access to ownership rights of rural lands in the country. It presents, based on government statistics, a criticism to rural development policies for not giving the correct approach for individuals to obtain the set of capabilities and functioning’s associated with the minimum conditions for a worthy life. The land issue is directly linked to income and wealth, but poverty has multiple dimensions that prevent the exercise of basic capabilities, putting people in situations of extreme hardship and deprivation. Public policies should seek the expansion of human capabilities, and if the right to property integrates this list of capabilities, then it must be guaranteed to all.
Acesso aberto (Open Access)
A tutela coletiva extraprocessual: o diálogo institucional como instrumento de atuação do ministério público para a concretização dos direitos sociais
(Universidade Federal do Pará, 2015-08-14) SILVA, Sandoval Alves da; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
The thesis argues for the progressive implementation of the human rights (gradualist reasoning) via institutional dialogue conducted by the public prosecution service that impacts directly on the „separation of powers” dogma through interaction between the branches of the government. To this end, it resorts to practical examples, theories and normative arguments. The thesis demonstrates the nature of the public prosecution service as a public power with constitutional autonomy and political-bureaucratic capability (democratic and moral legitimacy) to engage in procedural rounds to protect public interest and social demands aiming to fulfill the social rights via political accords that serve as a temporary last word about social conflicts. In order to carry out this task, the institution counts on procedural instruments such as notification, request, recommendation, accords of implementation, etc. Such instruments allow the institution to provoke, initiate, coordinate, conduct and carry out a dialog with the other branches of the government in order to reach a political accord that can fulfill the social rights. This action takes place when the state violates human rights either because it is involved in an excessive activity or because it is in a state of latency due to lack of the necessary specification of the social rights for extrajudicial enforceability and judicial enforceability. Thus, dialogue is integral in cases of default by either violation due to excess or omission of material benefits that are essential to cater for the human needs under the state responsibility in order to meet the immediate continuous and gradual obligation of providing definition, organization, proceduralization, specification and implementation of social rights to ultimately fulfill the distributive justice through the defense of the common, indivisible or collective goods and their individual appropriation scheme.
Acesso aberto (Open Access)
O controle de constitucionalidade da pena desproporcional em busca da resposta certa
(Universidade Federal do Pará, 2015-10-16) PICKERELL, Manuela Bitar Lelis dos Santos; GOMES, Marcus Alan de Melo; http://lattes.cnpq.br/0371519214729478
The research notes the need to accomplish in Brazil the judicial review of disproportionate penalty. If the stain pen is in jeopardy of conduct, the judge must acquit the defendant. However, if the stain remains at excessive quantum of sentence in the abstract, then the judge should disregard the sanctioning secondary rule applying to the case another penalty, withdrawal of paternal criminal legal system, which is proportional to the present situation. The Dworkin’s theory allows this judicial review to show that a decision leading to the principles of the law of the discussion forum devoted to democracy, and not vice versa. Moreover, the present law as an argumentative practice that aims to give the case the right answer, which will be achieved through a constructive interpretation of the moral principles of the community, Dworkin tie this election of the new sentence, away from the judicial decisionism. For the election of substitute penalty, the judge must find the settlor principle of incrimination, seeking it in another criminal type. This will be worth (right answer) to apply to the case.
Acesso aberto (Open Access)
Pluralismo constitucional interamericano: a leitura plural da constituição de 1988 e o diálogo entre o supremo tribunal federal e a corte interamericana de direitos humanos
(Universidade Federal do Pará, 2015-10-19) MAGALHÃES, Breno Baía; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
The thesis argues for the Constitutional Pluralism as a theory better suited to describe and explain the interactions between the 1988 Federal Constitution and the American Convention on Human Rights. Said interactions present themselves through the precedents of both the Supreme Court and the Inter-American Court of Human Rights. The thesis posits the theoretical fragility and the contextual mismatch of approaches based upon the monism/dualism dichotomy. Constitutional Pluralism, in turn, suggests the heterarchical interaction between constitutional orders through reciprocal influences. The supralegalty of international human rights treaties and the deference to regional constitutional interpretations enables the 1988 Constitution and the American Convention on Human Rights, respectively, to influence the substantive content of the fundamental and human rights through the deliberative dialogue between precedents and by having the construction of the pro homine principle as an ideal interpretive guide shared by both. Although Constitutional Pluralism is to be considered the theory that justifies the plural reading of the Brazilian constitutional provisions, the Supreme Court, despite the citations of the Inter-American Court of Human Rights precedents, does not dialogue with them.

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