Dissertações em Direito (Mestrado) - PPGD/ICJ

URI Permanente para esta coleçãohttps://repositorio.ufpa.br/handle/2011/3418

O Mestrado Acadêmico em Direito pertence ao Programa de Pós-Graduação em Direito (PPGD) do Instituto de Ciências Jurídicas (ICJ) da Universidade Federal do Pará (UFPA). Em 1984, foi reconhecido pela CAPES o Curso de Mestrado em Direito Público. Em 1987, o PPGD passou por um processo de reformas, que deram origem a duas Áreas de Concentração: Instituições Jurídico-Políticas e Instituições Jurídicas e Sociais na Amazônia. 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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Acordos de cooperação internacional para o intercâmbio de informações fiscais e o sigilo bancário
(Universidade Federal do Pará, 2018-05-08) LOBATO, Rodrigo Costa; SCAFF, Fernando Facury; http://lattes.cnpq.br/3214760192523948
This study examines the constitutional foundation that legitimizes the incorporation of international agreements for tax information exchange in the Brazilian legal system and those implications for privacy and banking rights and fiscal secrecy. In the first chapter, will be analyzed the recognition of the fundamental duty to pay taxes, demonstrating that tax collection is the main source of funds for the State to finance the realization of the fundamental rights protected by the Federal Constitution. And demonstrates that the non-payment of taxes per part of society distorts the principles of tax capacity and isonomy, preventing tax justice from being achieved. In the second chapter, a brief analysis is made of the conduct and strategies adopted by taxpayers to evade paying taxes, as well as the countries where they seek refuge to practice such practices. In the third chapter, it is proposed to examine three instruments of international cooperation that Brazil adopted as an attempt to combat such practices, the Convention on Mutual Administrative Assistance in Tax Matters, the Foreign Account Tax Compliance Act (FATCA) and the BEPS Project. In a sequence, the form of internalization of international agreements and treaties in the Brazilian legal system is studied. The fourth chapter is intended to analyze the conceptions about banking and fiscal secrecy in Brazil, especially after the introduction of Complementary Law n. 105/2001 in the legal system, demonstrating the understanding of the Federal Supreme Court on its constitutionality of the norm. At the end, it is examined the possibility of relativizing the constitutional protection conferred on the right to privacy and banking secrecy, allowing direct access by the Tax Administration to the taxpayers' financial data and the international exchange of this information, and what constitutional basis for it.
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O arranjo jurídico-institucional dos fundos patrimoniais: uma análise de legislação comparada entre Brasil e EUA
(Universidade Federal do Pará, 2023-07-06) PINHEIRO, Lucas Gabriel Lopes; SCAFF, Luma Cavaleiro de Macêdo; http://lattes.cnpq.br/5719163147143385
Endowment funds are instruments built with the aim of strengthening the financial sustainability of civil society organizations and can be interpreted as factors for the concretion of fundamental rights. The institute has paradigmatic experience in the legal-institutional arrangement in the United States, where federal tax incentives are foreseen in the Internal Revenue Code and rules related to management and investment and spending policies in the Uniform Prudent Management of Institutional Funds Act. Distinctly, in the legal-institutional arrangement in Brazil, endowment funds were provided for by Lei n.º 13,800/2019, with centrality in hard rules on the management and governance structure adopted. Given the distinctions between the arrangements, it is investigated how an analysis of comparative legislation between Brazil and the United States on the legal-institutional arrangement of endowment funds can contribute to raising funds to finance fundamental rights. For this purpose, a functional comparative method of procedure is used, with microcomparison investigation and documentary and bibliographical research. At first, the concepts of endowment funds, legal-institutional arrangement and transaction costs are presented, which underlie the emphasis on incentives provided in areas considered fundamental for raising funds for the cost of rights. Under this approach, the legal-institutional arrangements of endowment funds in the legal systems of Brazil and the United States are analyzed. Finally, a critical examination is carried out on the previous comparative exercise, considering the existing distinctions between both arrangements. It is concluded that a research of comparative legislation between Brazil and the United States of America on the legal-institutional arrangement of endowment funds contributes, from the perspective of raising funds with a view to cost of rights, by highlighting similarities and differences between the local arrangement and a paradigmatic experience around the institute, in order to visualize what is current in the regulation of key areas to encourage the creation of endowment funds, the making of donations, and the carrying out of investment by and/or through such funds.
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Defensoria pública e aplicação de métodos extrajudiciais nos estados da região norte do Brasil nos períodos 2006-2008 e 2018-2021
(Universidade Federal do Pará, 2023-05-17) CALDAS, Aline Rodrigues de Oliveira; VAZ, Celso Antônio Coelho; http://lattes.cnpq.br/0547983721448176
The promotion of extrajudicial conflict resolution is the institutional duty of the Public Defender's Office. It is the only function that receives, in the list of constant attributions in its national organic law, the addition of the word “priority”. This is an activity that was established in the original wording of the aforementioned regulatory law (and consisted of promoting extrajudicial conciliation between the parties) and that, since the advent of Complementary Law n.º 132/09, it encompasses the various techniques of composition and conflict management, appearing, in our times, as a priority institutional function. However, numerous factors can prevent or hinder the fulfillment of this institutional mission, such as the deficit of public defenders, lack of specific training, workload, lack of budgetary resources, structural difficulties (materials, support staff, etc.), the indispensability of working with the Judiciary (defense in court), the deficient coverage of services, inadequate environment, among others. Thus, in view of the difficulties faced and considering that this is a priority function determined by law, this research investigates the application of extrajudicial methods and techniques for dealing with conflicts by the Public Defender's Office in the assistance provided by the institution, and adopts as a spatial cut the Public Defenders of the Northern Region of Brazil-DPEs. To this end, it analyzes the proportionality/disproportionality and continuity/discontinuity existing between the cases received by these public defenders and the number of extrajudicial agreements entered into during these periods (those not judicially approved), as well as strategic planning and institutional organizational charts. The method used is hypothetical-deductive, with qualitative and quantitative research of the descriptive, analytical and explanatory type, and later inferential. In qualitative research, bibliographical and documentary research is used. In conducting the quantitative research, the main source of data is the National Public Defender's Survey (2022), and the time frame is the periods correlated to the database used (2006-2008 and 2018-2021). As a result, when collecting the data and performing the statistical analysis, it was found that the DPEs in the northern region effectively apply extrajudicial methods and techniques for dealing with conflicts, but apply them regularly with low intensity; and, in general, with reduced use over time.
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Desacordos teóricos na filosofia do direito contemporânea: a influência da filosofia da linguagem no debate Hart-Dworkin e a tentativa de sua superação através da teoria dos planos de Scott Shapiro
(Universidade Federal do Pará, 2018-02-08) RODRIGUES, Filipe Augusto Oliveira; MATOS, Saulo Monteiro Martinho de; http://lattes.cnpq.br/1755999011402142
This work has as general objective to analyze the influence of philosophy of language on the Hart – Dworkin Debate and the overcoming tried by the planning theory of Scott Shapiro, focusing the theoretical disagreements. This objective is always sought by the mixture of two elements. In the first place, the exploration of the existing arguments in legal theory. Secondly, the relation of these arguments to those presented in fields of general philosophy. Our hypothesis is that the study of this debate and relationship show us that Dworkin's theory of disagreements is the best explanation of the problem, but at the same time the opposing theories chosen are using several methodological elements that represent advances that have been made in general philosophy, such as the perspective of the plans proposed by Michael Bratman. We attempt to demonstrate this hypothesis through the principal analysis of four authors and their influences, namely Ronald Dworkin, H.L.A. Hart, Jules Coleman, and Scott Shapiro. Through this analysis we hope to demonstrate how the foundations of the proposed theories have been changing the focus from philosophy of language to other fields and which is the state of legal theory with this advance. As result, we defend the point that the hypothesis is right and even without the best explanatory capacity, the new theories of law need to be better analyzed and their earnings better considered.
Acesso aberto (Open Access)
Os desafios de ser mulher consumidora no brasil: um estudo sobre as desigualdades nas relações de consumo
(Universidade Federal do Pará, 2022-08-26) RODRIGUES, Isabelle de Assunção; SOARES, Dennis Verbicaro; http://lattes.cnpq.br/9961080231553419; https://orcid.org/0000-0002-2663-3303
This research aims to discuss the inequalities, contradictions and discrimination suffered by Brazilian women in consumer relations, based on non-biological notions of gender. It seeks to highlight the challenges faced by consumers throughout their lives, from childhood to seniority; from analogue to digital consumption, which cause violations either in the patrimonial sphere or in the moral sphere of women. From traditional to innovative media, advertising campaigns involving women are historically seen as either hypersexualizing or stereotypical. In digital consumption, specifically, there is algorithmic discrimination, practiced especially in the face of women. Thus, the legal basis of equality and non-discrimination, as well as the concepts of “conduct harm” (LEAL, 2018) and “harmful state” (FONSECA, 2019), become fundamental for the understanding of Brazilian women as consumers. hypervulnerable, raising as some possible solutions the application of the theory of dialogue of sources as a way of making compatible the various existing normative instruments for the protection of women; the initiatives of the Government and, especially, the union of women through consumer associations. The methodology used, regarding the procedure, was the legal and transdisciplinary bibliographic research, in areas such as Sociology, Philosophy, Constitutional Law, Civil Liability, and, regarding the approach, the deductive method was used, starting from the premise that women are hypervulnerable or hypervulnerable, and inductive, using recent data and studies.
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Desastre ambientais: proteção da dignidade por meio do modelo processual diálogo-cooperativo
(Universidade Federal do Pará, 2017-06-02) MOREIRA, Denis Gleyce Pinto; GÓES, Gisele Santos Fernandes; http://lattes.cnpq.br/1305423832262115
The present dissertation proposes to study the essential conditions to guarantee the protection of human and ecological dignity through cooperation in judicial processes that treat with environmental disasters. Two important aspects stand out in this study: the context of increasing quantity and intensity of environmental disasters worldwide and the new dialogue-cooperative model of civil procedure adopted by the Code of Civil Procedure of 2015. Therefore, we will study the society of disasters and the advent of the Socio-environmental State of Law. The dissertation will demonstrate the difference between the types of procedural models and the multidirectional evolution of law that theoretically structured the dialogic-cooperative model, with emphasis on Robert Alexy's legal argument theory and Edgar Morin's theory of complex thought. Finally, the study will address the criticisms and challenges of this new procedural model and what are the essential conditions for its success, especially in collective environmental actions. The objective is to identify and examine the appropriate conditions to ensure the protection of human and ecological dignity through cooperation in judicial processes dealing with environmental disasters, bringing to the debate an approach not only theoretical but with practical propositions from what has been discussed.
Acesso aberto (Open Access)
Diálogo entre cortes: a recepção da jurisprudência da corte interamericana de direitos humanos no Brasil: uma análise das decisões dos Tribunais Regionais Federais e do Superior Tribunal de Justiça
(Universidade Federal do Pará, 2015-06-16) ALBUQUERQUE, Lígia Chiari Mendes; MAUÉS, Antonio Gomes Moreira; http://lattes.cnpq.br/5100632338260364
The present work analyzes the judicial dialogue between the Inter-American Court of Human Rights (IACHR), the Brazilian Federal Regional Courts and The Superior Court of Justice. It is understood that Brazil is inserted in a context of legal pluralism, since it is subjected to more than one human rights protection order. To reconcile these orders is necessary to seek a non-hierarchical solution, being the judicial dialogue one of them. The work analyzes the types of dialogue, the ways in which the courts can relate to and the position of national judges in relation to the regional law on human rights. We, then, searched the websites of the Brazilian Courts objects of this study to identify decisions that used the jurisprudence of the Inter-American Court as a reasoning for deciding the cases. From these results it was concluded that the judicial dialogue between these courts is still in it’s early point, depending in many times on the personal initiative of certain magistrates, although we have found some significant results qualitatively, that shows that the dialogue is possible and would be positive as in protecting human rights.
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O Empoderamento virtual do consumidor como mecanismo de atuação cívica on-line indutor de novos padrões ao segmento empresarial
(Universidade Federal do Pará, 2020-07-30) FREIRE, Gabriela Ohana Rocha; SOARES, Dennis Verbicaro
With the technological advances provided by globalization and digital immersion, cyberspace has become the main infrastructure for commercial transactions, economic management, advertising, and communication between individuals, with this, a new actor came to appear in postmodern society: the consumer 4.0. Unlike a mere buyer and a reflection of the broad capitalist changes in the culture of consumption, the market scenario that, most of the time, prioritizes for-profit and the distancing of the State from the fundamental rights of consumers, this digital subject started to bear becoming increasingly connected between online and offline, being one step away from accessing information, thus requiring a more responsible supplier with a good market image. In this sense, this dissertation aimed to analyze the strengthening of digital solidarity among consumers through acts of boycotts and public manifestations, individual or collective, emitted in online social media to be perceived as an alternative mechanism to the exercise of citizenship independent of the performance governmental. The methodology was based on an interdisciplinary theoretical-bibliographic and documentary framework, predominantly by the deductive method, using qualitative research and an empirical component of an elucidative character, whether the analysis of cases occurred during the period from 2018 to 2020 in the environment of main online social media - Facebook, Youtube, Instagram, and Twitter - to invalidate the conclusions of the theoretical research. The study was divided into three sections. The first approached about the culture of consumption and the false promises of post-modernity from the perspective of market capitalism and its complications in the identity and subjectivity of the consumer. The second part focused on the perspective of the state scenario and the distancing of government policies towards the citizen-consumer, considering the obstacles in the three spheres of power - Legislative, Executive, and Judiciary -, the crisis of the individual and collective judicial model and the accentuated consumer vulnerability. In the last section, the discussion about the technological and informative immersion of the consumer and supplier between the online and offline environments, the meaning of brands in the digital consumer society, social media, and the acts of dissatisfaction, deepened mainly through the acts of boycott or “virtual cancellation” perceived in the economic, ecological, religious, minority, labor boycott or social, relational, experiential and/or political modalities, discussing, finally, about the exercise of digital citizenship through of these consumer manifestations and their obstacles. Thus, through the subsidies collected, it became possible to perceive that, behaviorally, the consumer has behaved in a more selective and identitary way about the decision-making factors of purchase in addition to the price of the merchandise, to value the experiences and share them in the fluid and interactive environment of social media, emphasizing their civic virtues of self-regulation, awareness of their power and freedom of choice, causing sensible changes in this new space of economic interaction, importing, not infrequently, in the loss of assets of the supplier and the need to readjust or reaffirm more responsible behavior given the greater likelihood of having a negative image associated with your brand, due to social punishments perpetrated by consumers and potential consumers.
Acesso aberto (Open Access)
Estudo sobre o modelo do programa de proteção aos defensores de direitos humanos desenvolvido na Amazônia paraense
(Universidade Federal do Pará, 2020-10-08) SANTOS, Julyanne Cristine Barbosa de Macedo dos; ARRUDA, Paula Regina Benassuly; http://lattes.cnpq.br/7257034539917718
This dissertation presents a study about the protection model adopted by the Pará Human Rights Defenders Protection Program (PPDDH-PA). Initially, it addresses a discussion about the development model imposed in the Amazon that generates the so-called “manifesting causes of conflicts” and then starts to debate the content of the “human rights defenders” concept and the main struggles waged by these subjects in Pará. Afterwards, a diagnosis about the situation of defenders in Brazil is presented, as well as the main mechanisms of violations used against these subjects and, next, an approach is made about the protection of defenders as public policy, passing a survey carried out on the Protection Program in Brazil, its scope and limits. Finally, a history about the PPDDH-PA is constructed, analyzing the protection model adopted by it and presenting a discussion about possible alternatives in view of the PPDDH limits. It was noted that the implementation of the PPDDH occurred in a disconnected manner and without a plan oriented to achieve the proposed objectives, opting for a model of police protection that, in itself, establishes numerous obstacles for the access, inclusion and monitoring of defenders under threat. Faced with this scenario, however, it is possible to think of alternatives for the construction of a comprehensive protection policy, whether through the State or not.
Acesso aberto (Open Access)
Federalismo Fiscal da Dívida Pública e o STF: um estudo de caso a partir do MS nº 34.023 e da ACO nº 3363
(Universidade Federal do Pará, 2021-09-20) GUIMARÃES, Arthur Porto Reis; SCAFF, Fernando Facury; http://lattes.cnpq.br/3214760192523948; https://orcid.org/0000-0002-5484-4108
The main objective of the present research is to describe the fiscal federalism of the public debt starting from the Federal Constitution of 1988 and to investigate the role of the Supreme Court in the inter-federative conflicts involving the public debt of the member states, having as case studies the Writ of Mandamus (MS) nº 34.023 and the Original Civil Action (ACO) nº 3363. Thus, the dissertation chapters are organized through the following specific objectives: to analyze the constitutional design of public debt fiscal federalism in the 1988 Constitution, with an emphasis on exposing the federal functions and relations performed by the Union, Senate and subnational government; understand the process of reversing cooperative and solidary fiscal federalism through the economic policy promoted by the Union, with constitutional changes that affected the distribution of resources to States; to analyze how the dynamics of public debt federalism pressure the government relations in Brazil, causing successive fiscal judicial conflicts between the Union and States; based on case studies, to evaluate how the decisions of the Supreme Court in the inter-federative conflicts changed the fiscal federalism of public debt. The main result of the research exposes the fiscal federalism of public debt as the constitutional design of the normative complex of legal and political relations of public indebtedness of subnational entities, plus the primordial performance of autonomous entities and institutions in the authoritative political-legal process of operations, normative regulation, definition of limits and imposition of control. This complex intertwining generates friction and disagreements between the Union, endowed with a threefold function - manager, guarantor, creditor -, and the States submitted to an infinity of federal legislative and infra-legal rules to have access to credit operations. In this conflicting inter-federative financial relationship, the STF acted to promote the federative balance and reduce the differences between political entities. The STF did not encourage the Union to grant privileges to States or to grant new debt forgiveness, but rather, it intermediated the composition of a political solution between central and subnational governments, like an authentic Federation Court, participating in the dynamics of fiscal federalism of public debt.
Acesso aberto (Open Access)
O formalismo no direito e a ética dos valores: teoria dos valores em Hans Kelsen e Max Scheler
(Universidade Federal do Pará, 2018-05-04) FONSECA, Yuri Ikeda; MATOS, Saulo Monteiro Martinho de; http://lattes.cnpq.br/1755999011402142
The philosophy of values (Wertphilosophie), appearing in the context of the neo-Kantian investigations of the School of Baden in the late 19th Century, is a theoretical approach focused on the study of the phenomenon called value. The first chapter of this work, with the methodology of a history of ideas, discusses the formalist ethics of Immanuel Kant, the origin of the philosophy of values in the theories of Franz Brentano and neo-Kantians Hermann Lotze, Wilhelm Windelband, Heinrich Rickert and Emil Lask, and the division of the theory of values into an objectivist strand and a subjectivist one, trying to demonstrate that the latter has prevailed due to the influence of Friedrich Nietzsche's conceptions of values. The second chapter deals with Max Weber's idea of axiological neutrality (Wertfreiheit) of the sciences and Hans Kelsen's legal formalism, which is supported by a subjectivist and skeptical theory of values, both representing the subjectivist view. It is also presented Carlos Santiago Nino’s argument against the idea, defended by Kelsen, that only a relativistic conception of values could promote the democratic ideals of tolerance. The third chapter is dedicated, after a brief comment on Edmund Husserl's phenomenology, to Max Scheler's arguments against Kantian ethical formalism to support an objectivist axiology based on the notion that values are material contents that can be known a priori and are, therefore, capable of substantiating a nonformal ethic. It is concluded that, though Scheler’s statement of grounds is problematic in considering the knowledge of values as a function of emotions, not of reason, on the other hand his formulation of the a priori and of a scope of pure axiology with rules similar to those of logic facilitate objections to the presuppositions of the subjectivist axiology.
Acesso aberto (Open Access)
A fragmentação moral moderna: crítica e alternativas a partir da ética das virtudes de Alasdair Macintyre
(Universidade Federal do Pará, 2018-04-27) LIMA, Lucas do Couto Gurjão Macedo; VAZ, Celso Antônio Coelho; http://lattes.cnpq.br/0547983721448176
Modern moral debates are characteristically marked by the impossibility of reaching a rational solution to the issues in dispute, so that we are deprived of any mechanisms for the solution of these controversies. Although this situation of incommensurability may be understood as an intrinsic element of moral argumentation, the Scottish philosopher Alasdair MacIntyre perceives this as a particularly modern element, the consequence of a succession of historical and philosophical causes that lead us to this situation, which could be remedied through a proper understanding of the situation. The present work, therefore, proposes to investigate in what way this specific understanding of MacIntyre on the current state of morality sheds light on its main problems, clarifying them, as well as what are the alternatives that arise from its own theoretical elaboration, specifically that contained in the core of his philosophical work usually denominated as the After Virtue Project. Through the analysis of the central works of his philosophical project and through the writings of his main commentators, we seek to investigate the central elements of the author's theory, inquiring how his insights can provide suitable elements for, if not a perspective of possible solution of the problem, at least contribute to the enrichment of philosophical debates on moral and political issues. It is concluded that MacIntyre presents a strong and robust understanding of the state in which modern morality finds itself, as well of the causes responsible for this which have lead us to a state of disorder, fragmentation and incommensurability, while also offering a radical, innovative, instigating and highly controversial alternative, which is derived from his particular understandings of classical philosophy.
Acesso aberto (Open Access)
A fundamentação ética dos Direitos humanos em Tomás de Aquino: pessoa humana, bem comum e Lei natural
(Universidade Federal do Pará, 2017-03-09) SOUZA, Elden Borges; PINHEIRO, Victor Sales; http://lattes.cnpq.br/0416222855469529
In analyzing the contemporary legal and political discourse we can conclude that one of the central elements is the concept of human rights. These rights have become a central element in the main current discussions. However, when we carry out a more detailed analysis, we conclude that there is not a sufficiently dense concept to justify all the proposals anchored in them. On the contrary, they have made such a vague element that it is possible to sustain any pretense in them and, consequently, to deprive them of any content. In this context, the present work starts from the hypothesis of research that the ethics exposed by Thomas Aquinas can provide an adequate way to justify these rights. Thus, the central objective of the current research is to analyze the extent to which Thomist ethics can support the concept of human rights. The research is a bibliographical one, turning to the works of Thomas Aquinas and his main interpreters – those that, in some way, allow to discuss the research problem, like Finnis and Hervada, among others. The dissertation was organized from three axes, which form three chapters: the presentation of the conceptual problem of human rights; the analysis of Thomist ethics from its distinctive concepts and related to these rights; finally, the relation between Thomist ethics and the foundation of human rights.
Acesso aberto (Open Access)
Incentivos fiscais de ICMS declarados inconstitucionais pelo supremo tribunal federal podem ser cobrados do contribuinte?
(Universidade Federal do Pará, 2017) CARDOSO, Breno Lobato; SCAFF, Fernando Facury; http://lattes.cnpq.br/3214760192523948
The dissertation aims to investigate the question of whether a taxpayer may be forced to return to the treasury amounts resulting from ICMS tax incentives declared unconstitutional by the Federal Supreme Court. It begins by presenting the concept, causes and development of the fiscal war, analyzing whether this kind of public policy is capable of bringing advantages. Next, the position of the Federal Supreme Court on the subject is analyzed, which is to recognize the unconstitutionality of fiscal incentive laws made without the unanimous authorization of CONFAZ. The effects of this declaration of unconstitutionality on the taxpayer's legal sphere are discussed in order to conclude that it is necessary to modulate the effects of the decision for the future, in the light of the principle of the protection of legitimate expectations. The jurisprudence of the Federal Supreme Court is criticized, arguing that it would be incompetent, since the matter is infraconstitutional and, with support in doctrine, that art. 2, paragraph 2, of LC 24/1975 was not approved by the Constitution. At the end, it proposes to change the legislation, allowing the granting of ICMS tax incentives by states in the north, northeast and center-west regions, with the authorization of the absolute majority of CONFAZ.
Acesso aberto (Open Access)
Isenções fiscais e proteção ambiental: entre o poluidor-pagador, o usuário-pagador e o protetor-recebedor
(Universidade Federal do Pará, 2016-09-02) BRITO, Luis Antonio Gomes de Souza Monteiro de; KZAM NETO, Calilo Jorge; http://lattes.cnpq.br/0615330668721075
This study aims to analyze the legal validity of the green tax exemption in relation to the environmental-legal principles of the polluter-pays, the user-pays and the protector-receiver. Therefore, in the first chapter is going to be done an analysis essentially propaedeutic, to feature the Law, presenting its sources and the concept of legal system, legal sanction and legal norm, the latter emphasizing the distinction between rules and principles and the characterization of validity. In the second chapter is going to presented the economic fundaments of environmental taxation, with a generic presentation of the economy of natural resources and the characterization of them as common resources and the economic definition of externality and explicitness of the means available to its elimination with the market extension or with the market correction. In the third chapter is going to be done the legal structuration of the matrix-principle of the economic-environmental efficiency, which is considered the common legal-normative basis of the legal-environmental principles of the polluter-pays, the user-pays and the protector-receiver. The fourth chapter is going to be dedicated to the conceptual construction of the green tax exemptions, delimiting them in relation to the general tax exemptions and demonstrating specifically its potential extrafiscal inductor of ecologically beneficial behaviors feature. Lastly, based on the results obtained within the last chapters, is going to be analyzed the relation between the green tax exemptions and the protector-receiver principle and after with the polluter-pays and the user-pays principles, then finally define about the validity or the invalidity of that tax benefit against the economic-environmental principles.
Acesso aberto (Open Access)
A liberdade de expressão e o crime de desacato no Brasil à luz do sistema interamericano de direitos humanos
(Universidade Federal do Pará, 2023-03-28) FONSECA, Maria Eduarda Dias; RIBEIRO, Cristina Figueiredo Terezo; http://lattes.cnpq.br/9188707404168670
Considering the importance of the right to freedom of expression for the consolidation of a democratic society, especially regarding the democratic control of state activities, there is a need to discuss the understandings concerning this right and the ways in which it can be restricted. In this sense, the purpose of this research is to study the content of the right to freedom of expression in light of the Inter-American System of Human Rights. On this basis, the aim is to observe the understandings of the Inter-American Court of Human Rights and the Inter-American Commission of Human Rights regarding freedom of expression, defining its content and the criteria listed so that its restriction does not constitute a violation of human rights, seeking to understand the points in which the understandings of these bodies converge or diverge, which can be better observed when it comes to the use of criminal means as a way to restrict freedom of expression. . Subsequently, the aim is to analyze whether the crime of contempt as typified in Brazilian law is compatible with the protection of freedom of expression. In order to observe how the international provisions on the subject are applied in domestic law, the arguments used by the Federal Supreme Court in ADPF 496/2020, which deals with the conventionality of the offense of contempt, will be studied in order to analyze whether they are consistent with the protection of freedom of expression and with the understanding of the Inter-American System. Thus, this study aims to answer the following research problem: what is the position of the bodies of the Inter-American System of Human Rights on the right to freedom of expression and the use of criminal means and how does the Federal Supreme Court use this understanding to decide on the conventionality of contempt in ADPF 496/2020? This will be done by using bibliographic research, in order to help define the concepts, and documental, especially through the analysis of documents from the Inter-American System, focusing on the Court sentences that deal with the protection of freedom of expression and the respective merit reports from the Commission.
Acesso aberto (Open Access)
O lucro do ofensor como critério de quantificação das indenizações por danos morais
(Universidade Federal do Pará, 2018-03-15) FAMPA, Daniel Silva; LEAL, Pastora do Socorro Teixeira; http://lattes.cnpq.br/3244282344643324
The present study aims to analyze to what extent the offender's profit can be considered a criterion in relation to the quantum of damages fixed by way of moral damages. It adopts the deductive method throughout the investigation, supported by bibliographical research and caselaw survey to confront the hypotheses of the work. In order to answer the problem question, it initially examines the interlocution between the functions of civil liability contemporaneously diffused. It considers compensation to be a dimension of the reparatory function, being essential to adapt this function to the regulations of moral damages, since these are incompatible with the logic of returning to the status quo ante. It contextualizes the reparation of damages in the constitutional system of prime protection to the dignity of human beings, gauging the effects that emanate from the incidence of the ideal of personalization in relations set among individuals. Through a research in the Federal Supreme Court’s virtual database of decisions, it reports the stages of the process of acceptance of moral damages in Brazil, from its unrestricted rejection to its insertion in the Federal Constitution of 1988. In addition, it discusses the most widespread attempts of their conceptualization, accepting, among the proposals that qualify them as a violation of human dignity, the one which is friendlier to the requirement of integral protection of individuals, since this expands the range of possibilities of legal goods that are compensated in case of violation. It acknowledges that the need for compensation for such damages represented the effective entrance door for "new" functions of civil liability in Brazil, since the equitable arbitration, as a model of quantification, grants the judges greater freedom, regarding to the stipulation of the quantum of damages, allowing them to consider criteria that cannot be considered reparatory. First, it examines the problem of quantification from the comparison between the ‘law pricing’ and ‘the equitable arbitration by the judge’ models, indicating their respective manifestations in the internal legal system. It investigates the main criteria of quantification adopted by the Brazilian Courts today, including consideration of the biphasic method, absorbed by the Superior Court of Justice in its law-cases. It explores the teleological connections that the offender's profit parameter holds with the civil liability functions, identifying the possibilities of a double dimension of the damage suffered by the victims in these cases. It concludes that the criterion investigated has a clear reparatory purpose in relation to the offender; therefore, it is not necessary to evoke the punitive or preventive function to support its applicability. Without prejudice to the preceding idea, it is possible to consider a punitive or dissuasive approach in cases of malice or gross fault by the offender, and it is essential that the judges observe, in stipulating the quantum of damages, the nature of the right which was injured, especially considering the extent of right-holders (whether individual or trans individual), which may cause changes in the quantum defined.
Acesso aberto (Open Access)
Precedentes sob a perspectiva das teorias da argumentação jurídica de Neil MacCormick e Robert Alexy: da inteligibilidade dos deveres de coerência e integridade do Código de Processo Civil à análise de julgados do Supremo Tribunal Federal
(Universidade Federal do Pará, 2018-01-25) GARCIA, Arthur Vinicius Berreza; COSTA, Rosalina Moitta Pinto da; http://lattes.cnpq.br/5469957203750291
The work exhibits one precedents theory, based on the theoreticals of legal reasoning Neil MacCormick and Robert Alexy, with the objective of defending its application in the Brazilian legal order from the analysis of devices of the Code of Civil Procedure and the Supremo Tribunal Federal decisions. In the legal field, it is sustained the interpretation of devices to the use of precedents under the perspective of the proposed theory, highlighting the concepts of coherence and integrity. In the practical field, despite the existence of a different conception from the Supremo Tribunal Federal’s ministers about the use of precedents, the change of this vision is defended.
Acesso aberto (Open Access)
A prevenção na responsabilidade civil e a imputação pela formação do estado de danosidade
(Universidade Federal do Pará, 2017-03-24) FONSECA, Aline Klayse dos Santos; LEAL, Pastora do Socorro Teixeira; http://lattes.cnpq.br/3244282344643324
The institute of the civil liability, inserted in the methodology of the contemporary civil law, passes for intense transformations, instigating the reflection on its sensible Real and the effectivity of the reparatórios mechanisms to stanch or to diminish the proliferation of illicit behaviors that interfere with the legal sphere of the human being, causing legal injuries in its existential situations, goods or interests. In this scene, some legal concepts, the example of the damage concept, for its proper rigidity, favour the continuity depráticas harmful or potentially damages and cause exaggeration between the necessary precaution and prevention of the damages. In this manner, the present study it has as central intention had analysed conceptual adequacy of the damage to insert, coherently, the prevention, in the institute of the civil liability, as well as the legal consequences happened of this conceptual magnifying, as well as the mechanisms to discourage the injuring behavior them individuals, restraining illicit behaviors that, even so do not cause concrete damage, form an unfair state of danosidade that at risk puts the human being, legal goods or interests, considered individual or collectively. The research was guided by the hypothesis of that, traditional and rigid oconceito of damage, understood as an effective reduction of a patrimony compromises the prevention and inhibition of damages and perpetrates abusive practices in society current, given the resistance to impute the responsibility to the agent who forms an unfair state of danosidade without the existence of a concrete damage is verified and current. However, the adoption of a concept of ample damage that accumulates of stocks the unfair training of the danosidade state allows that the civil liability accomplishes its aims that they go beyond the simple repair, but involves, also, the prevention, precaution, punishment and the induction of behaviors adjusted with the constitutional and infraconstitutional values.
Acesso aberto (Open Access)
A Problemática da insuficiência teórica do nexo de causalidade: dificuldades e avanços
(Universidade Federal do Pará, 2021-01-29) GILLET, Jessica Santos Malcher; LEAL, Pastora do Socorro Teixeira; http://lattes.cnpq.br/3244282344643324
This master's thesis seeks to reflect on one of the assumptions of civil liability - the causal link. In view of the current theoretical difficulty to solve complex problems, fruits of contemporary relations, the objective of the work is to demonstrate that the assumption of causality is faced in Brazilian doctrine and jurisprudence in a confusing way, especially addressing three main theories - equivalence of conditions, adequate cause and direct and immediate cause, elected and applied, without due coherence or justification, and also that it is necessary to analyze the causal link within other possibilities besides those used in the Courts. Thus, in order to answer the problem presented, the work offers new views on the causal nexus, within punctuated foreign doctrines, as well as verifying the application of the most usual theories in judges selected for their relevance to research. For the construction of the master's thesis, the inductive method was used. It is concluded that the jurisprudence is imprecise as to the use of the equivalence of conditions theory, adequate cause and direct and immediate cause and that Brazilian doctrine already has, in a timid way, alternatives for the analysis of the causal nexus that accompany the tendency of foreign law and these are in accordance with constitutional principles, producing a dialogue based on otherness, which may come to build more dignified protection for the victim.

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