Programa de Pós-Graduação em Direito - PPGD/ICJ

URI Permanente desta comunidadehttps://repositorio.ufpa.br/handle/2011/3417

O Programa de Pós-Graduação em Direito (PPGD) iniciou suas atividades em 1984 e integra o Instituto de Ciências Jurídicas (ICJ) da Universidade Federal do Pará (UFPA), que, por sua vez, se originou da Faculdade Livre de Direito do Pará, uma das mais antigas do país, fundada em 1902.

Navegar

Agora exibindo 1 - 20 de 41

Acesso aberto (Open Access)
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.
Acesso aberto (Open Access)
Adoção internacional: o melhor interesse da criança e seu direito fundamental à convivência familiar em face da subsidiariedade
(Universidade Federal do Pará, 2021-06-29) FURTADO, Maria Marlene Escher; RIBEIRO, Cristina Figueiredo Terezo; http://lattes.cnpq.br/9188707404168670
The thesis presented deals with International Adoption from the perspective of the best interest of the child and his/her fundamental right to family life confronting its subsidiarity in Brazilian legislation. The problem raised in this research was: “to what extent does the subsidiarity of international adoption in Brazil affect the realization of the child's right to family life in the perspective of child’s best interest?”. The objective was: “to investigate the obstacles to international adoption and obstacles to effective family life in the perspective of the principle of subsidiarity”. The method used was the deductive one and the techniques were bibliographic research; jurisprudential, via decisions of the Third Panel of the STJ; and the field, where visits and semi-structured interviews were carried out with the Federal Central Administrative Authority, State Judicial Commissions of International Adoption in the states of Pará, Ceará, Rio de Janeiro, Santa Catarina, Rio Grande do Sul, and Mato Grosso do Sul, and also, forms were applied, via e-mail, to the State Judicial Commissions for International Adoption from all over Brazil, to ACAF, in Courts of Childhood and Youth, State Prosecutor's Office, as well as in bodies accredited to act in international adoption. The main results found were: that the current Brazilian legislation puts international adoption as the last resort and, thus, does not guarantee the effectiveness of the child’s right to family life in a situation of adoptability; that from the analysis of the decisions of the STJ, the best interest of the child is family life, with its institutionalization being the last resort; and that from the analysis of the interviews and applied forms, it was found that most professionals do not consider subsidiarity to be an obstacle; however, it was identified that professionals with longer experience in international adoption understand differently, arguing that subsidiarity “runs against time” and delays the child's adoption process. The conclusion reached was that insofar as the subsidiarity principle places international adoption as a last resort, the fundamental right of the child to family coexistence is not taken into account in view of his/her best interest in being raised and developed in the midst of a family that cares and loves the child.
Acesso aberto (Open Access)
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.
Acesso aberto (Open Access)
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.
Acesso aberto (Open Access)
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.
Acesso aberto (Open Access)
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.
Acesso aberto (Open Access)
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)
Os Fundamentos da repercussão geral: as funções dos recursos aos tribunais de cúpula e o descongestionamento do STF
(Universidade Federal do Pará, 2021-12-20) SOUSA, Lizandro Rodrigues de; VAZ, Celso Antônio Coelho; http://lattes.cnpq.br/0547983721448176
It is a thesis that investigates the theoretical and historical foundations that supported the new configuration of diffuse constitutionality control in the STF (Supremo Tribunal Federal), with the institution of the Repercussão Geral (RG). The methodology used required a cadence. In order to identify the foundations for the institution of the RG as a filter of admissibility of the Recurso Extraordinário appeal in Brazil, we deal with each possible foundation in a specific chapter. The first possible foundation considers the role of the vertex courts based on the description of the role of judges and of the top courts, given the current guidelines of conduct. From the observation that the process has evolved, from a means to the realization of subjective rights to an effective protection of rights through fair decisions and/or the promotion of the unity of law, the study analyzes how the process and functions of the vertex courts. Would the RG help the STF to configure itself not as a court of justice, but as a court of precedents? The second possible foundation supposes the recognition that there is a worldwide tendency to solve the phenomenon of congestion of the Vertex Courts by restricting access, in order to build them into true courts of precedents. Would RG be the Brazilian version of this trend? The third possible foundation comes from the finding of the separation of the STF from the court corresponding to the historical and political justification of its conception and the conception of the Recurso Extraordinário itself, of which the RG is a current and special requirement of admissibility. In this sense, from the Constitution of 1891 onwards, the embryonic destination of this resource to sustain the supremacy of the Constitution, the authority, validity and completeness of federal law, the nature and type of Brazilian federation, is evident. Could these scopes be pursued today with the knowledge of only a relevant part of the extraordinary appeals together with the operation of other instruments, such as the actions of concentrated constitutionality control, which did not exist in 1891? The fourth possible foundation is based on the assumptions of the model found in Mitidiero (2015) or Taruffo (2011), which distinguishes the Supreme Courts from the Superior Courts. It states that a constitutional court cannot be seen as the final source of justice in the specific case, but as a court of precedents, and that ways of selecting resources according to criteria related to the general importance of the issues raised is a fundamental requirement for that a vertex court is seen as supreme. Would RG be in line with this model? The study concludes that the RG joins a list of previous attempts, thought or implemented, to overcome the centenary crisis of the Supreme Court. That currently, the RG is inserted in a positive procedural context (repetitive appeals, collective actions...) in favor of the rationalization of the practice of the Brazilian vertex courts. And that the set of grounds exposed gave support to the implementation of the RG as a solution to the STF crisis and as a directing factor of our constitutional court towards an orderly action in pursuit of its nomophylactic, standardizing and paradigmatic functions in the field of constitutional law.
Acesso aberto (Open Access)
Greve ambiental individual: propostas para a sua efetividade
(Universidade Federal do Pará, 2021-12-21) ZWICKER, Igor de Oliveira; MARANHÃO, Ney Stany Morais; http://lattes.cnpq.br/5894619075517595; https://orcid.org/0000-0002-8644-5902; LEAL, Pastora do Socorro Teixeira; http://lattes.cnpq.br/3244282344643324
The ILO’s Convention n. 155, an international human rights treaty that bears the hierarchical-normative position of supralegality in the Brazilian legal-constitutional system, provides for the possibility of triggering an environmental strike for the self protection of life or health, by a single worker. The research problem rests in the (in)effectiveness of ILO’s Convention n. 155, due to the series of obstacles that militate in favor of its ineffectiveness: the worker's vulnerability; the lack of protection for the environmental striker and the difficulty in recognizing the guarantee of employment; the lack of strengthening of anti-discrimination protections; the lack of recognition of the right to refuse work situations that involve an imminent and serious risk to life or health; deficiency in the collective governance of the work environment; the inexistence of an adequate exercise of the right to environmental information, at its three levels (right to inform, right to seek information, and right to be informed); and the worker's lack of technical knowledge to adequately exercise self-protection. The research goes deeper into the institute of the individual environmental strike and the general objective is to seek ways to guarantee the effectiveness of its outbreak, by a single worker. The research presents itself theoretical, for the delimitation of the environmental strike in its individual bias; jurisprudential, to recognize the meaning and scope of the institute in the iterative, current and notorious jurisprudence of the Superior Labor Court; and empirical, to verify the effectiveness of the environmental strike. The results show that, currently, the individual environmental strike is not effective, lacking proposals for its effectiveness. It concludes with the presentation of proposals for its effectiveness: caution in recognizing the abusiveness of individual environmental strikes, with inquiry into the extensive information offered to workers, so that they could exercise this right/guarantee; a reverse onus clause, that shifts the burden of proof onto the employer; the communication to other social actors and not just to the worker's direct superior; a supported decision-making, with recourse to technical advisers outside the company; the guarantee of indemnity for its free exercise, without fear of employer reprisal; and the protection of self-protection as an intrinsic corollary of freedom of association, with the presumption that the worker acted in good faith in defense of his life or health.
Acesso aberto (Open Access)
Identificação e quantificação do dano moral: fundamentação da decisão judicial na perspectiva jurídica e ética da lei natural
(Universidade Federal do Pará, 2018-11-23) BONNA, Alexandre Pereira; LEAL, Pastora do Socorro Teixeira; http://lattes.cnpq.br/3244282344643324
Reflect about tort law in terms an ethical and juridical reading in the field of identification and quantification of non pecuniary damages. Adopted as a theoretical assumption that has the purpose of two dimensions: a factual and an ideal, in the wake of Robert Alexy's Theory of Legal Argumentation (2014). It clarifies that concerning moral damage, in the first dimension (factual) exists the legal of off-balance-sheet assets legally protected, while in the second (ideal) it is argued that there are the true basic of men (ethics), which complement and strengthen an analysis of off-balance sheet data on the identification and quantification of moral damages. The Law of Extramarital Rights Derived from Right to Right, Based on Bebhinn Donnelly - in An Approach to Natural Law to Normativity (2007) - Mark Murphy in Natural Law in Jurisprudence and Politics (2006) and Natural Law and Practical Rationality 2001) - and John Finnis - in Natural Law and Natural Rights (2007) and Aquinas: moral, political and legal theory (2008). The research problem is to investigate the impact of the complementarity relationship between offbalance sheet assets and basic metric values and the quantification of moral damage, with the objectives of investigating and substantiating the statistical data of the basic years in the identification and quantification of moral, to investigate at the dogmatic and jurisprudential level the parameters for recognizing the moral damages, to present an ethical justification for moral damages based on the basic human goods, and to carry out a series of study with the ethical, developing ethical-legal reasoning of moral damage in concrete processes. It is guided by the hypothetical-deductive method, starting from general and abstract premises on the identification and quantification of moral damage in law and dogmatics, as well as on the history of basic human facts, particularized. It concludes from the analysis of some judicial decisions involving moral damages pronounced by the lower court judges of the civil and labor courts of the city of Belém, that they are limited from a legal and ethical point of view and that if they endorse the thesis described here, civil liability could play a more relevant role in constructing virtuous behaviors (identification of moral damage) and fair quantification of the indemnity value across the magnitude of the damage suffered (quantification of moral damage), as well as being better understood by academics and professionals in the Law, to the extent that the research in its global sense presents a proposal of systematization of the reasoning involving civil liability for moral damages.
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)
Justiça restaurativa: ampliando suas fronteiras para o direito de família
(Universidade Federal do Pará, 2021-09-14) SOARES, Cynthia Fernanda Oliveira; COSTA, Rosalina Moitta Pinto da; http://lattes.cnpq.br/5469957203750291; https://orcid.org/0000-0002-3673-6912
Family conflicts are complex and are growing in scale related to several aspects, such as psychological, behavioral, moral, cultural and economic, leading to the massification of judicialization due to the actors involved not being able to reach a consensual resolution. This fact also generates the possibility of other conducts arising from the absence of this consensus with consequences, including criminal ones. This research aimed to verify the possibility of applicability of Restorative Justice in conflicts of Family Law whether judicial or not, observing its specificities so that the methodological approach could be applied satisfactorily. As a methodology, qualitative empirical research with a hermeneutic focus was chosen. In the phase of restorative justice interventions in concrete cases, the peacebuilding circle method was applied, according to the methodology described by Pranis (2011). First, a bibliographic documentary survey was carried out on restorative justice, family conflicts, restorative practices, projects and legislative policy. Then, the choice of cases for interventions to be carried out, with cases of family conflict that were under the responsibility of the Nucleus of Legal Practice (NPJ) of the Federal University of Pará (UFPA) being selected; the Court of Justice of the State of Pará (TJPA) of Belém, through the 4th and 5th Family Courts; Permanent Nucleus of Consensus Methods for Conflict Resolution (NUPEMEC), and the Judiciary Center for Conflict Resolution and Citizenship (CEJUSC) of the Capital and Ananindeua, totaling 14 interventions. Which followed the following steps: pre-circle, peace-building circle and post circle, when possible. After analyzing the interventions, the results were: five fully restorative cases; four partially restorative cases; and five non-restorative cases. Given the above, it is observed that the resolution of family conflicts through Restorative Justice is fully possible and even recommendable, providing the actors involved with the opportunity to reach a consensual, humanized and democratic solution, based on dialogue and active listening , enabling a safe environment for the discussion of difficult and painful matters that meets the needs of the parties, generating obligations in relation to the damage caused, making them assume their responsibilities.