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Thèses |
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1
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ARMENIO ALBERTO RODRIGUES DA RODA
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TRAFFICKING IN PERSONS IN LEGAL ORDINANCE MOZAMBICAN
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Leader : MARIO JORGE PHILOCREON DE CASTRO LIMA
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MEMBRES DE LA BANQUE :
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MARIO JORGE PHILOCREON DE CASTRO LIMA
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SAULO JOSE CASALI BAHIA
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ISIS APARECIDA CONCEICAO
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Data: 1 févr. 2019
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Afficher le Résumé
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This research focuses on the analysis of crime of human trafficking for the purpose of sexual exploitation, slave labor and removal of human organs, analyzing in accordance with the Mozambican legal system and global perspective inherent to trafficking of Human beings, which finds shelter in the international protection system of Human rights of the UN, that Mozambique is signatory. And also intend in this approach to mention human trafficking as a global problem of violations of human rights, particularly the non-respect of the Principle of human dignity adjacent to the victims of trafficking as of Human beings , It is also intended to mention the economic and social aspects that influence the crime of trafficking of human beings in the Mozambican. In the same time this research analyze the legal situation and social situation of human traffing in Mozambique, but also highlighted the social factors that are useful for prevention and repression against trafficking of human beings. Therefore, trafficking of human beings is characterized as a crime against humanity, which is multifaceted, organized and transnational nature, involving several States territories in the execution of the this crime, involving different nationalities of criminals that integrate the international criminal traffic network. Therefore, the crime of human beings trafficking is a public crime, according to the Mozambican legal system. For criminal procedure does not depend on a particular complaint of the victim.
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2
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LARISSA ANDRADE TEIXEIRA PEREIRA
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I WOULD PREFER THAT THE LIMITS AND POWER OF "NON-SAID" IN THE FOUNDATION OF JUDICIAL DECISIONS IN THE LIGHT OF CASS SUNSTEIN MINIMALISM AND "BARTLEBY, THE WRITER - A WALL STREET HISTORY"
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Leader : NELSON CERQUEIRA
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MEMBRES DE LA BANQUE :
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DANIEL NICORY DO PRADO
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NELSON CERQUEIRA
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SAULO JOSE CASALI BAHIA
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Data: 6 févr. 2019
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Afficher le Résumé
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This paper aims to analyze the limits and potency of "unsaid" in the grounding of judicial decisions under political and philosophical prisms, mediated by the literary work "Bartleby, The Scribe - A History of Wall Street", by Herman Melville. It seeks to fill the theoretical gap with regard to the following research problem: to what extent is "non-said" in the basis of judicial decisions legitimate, profitable and unavoidable in a democracy? In order to respond to the political aspect of the issue, the theoretical minimalism of Cass Sunstein was adopted as a theoretical reference, whose emphasis is on the legitimacy and democratic virtues of the adoption of a minimalist model of reasoning, which resorts to the theoretical incompleteness in the reasoning of decisions judicial proceedings. It is also tried to face the clash between this model and the coherent proposal of Ronald Dworkin. In order to respond to the philosophical aspect of the problem, it was used Gilles Deleuze, Giorgio Agamben and Jacques Derrida's reading of Bartleby's famous phrase "prefer not to", inserting research in interdisciplinary studies between law and literature. Judicial minimalism is thus placed in the light of philosophy about literature, so that one understands how the said and unsaid are manifested in language. It is concluded that from the philosophical perspective, despite the diverse political effects generated by one and the other posture, as seen in the light of Cass Sunstein, the clash between minimalism and maximalism, although different in levels of reasoning, are not different qualitatively, since Derrida's deconstruction shows that the said and the unsaid are two sides of the same coin. Both are faced with the impossibility of escaping from language (the unspoken is always a saying and the saying is always an unspoken). It is suggested, however, a differentiated semantics of the absolute non-said of minimalist decisions as posture typical of "would rather not ", and for that reason absolute power; while the unsaid contained in the said, more prominent in maximalist decisions, triggers the dynamics of responses, and must deal with interpretation. Finally, it is concluded that there is an inevitable void in judicial decisions, corresponding to justice to come as absolute unreachable alterity.
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3
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EDEM NÁPOLI GUIMARÃES
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THE (IN) CONSTITUTIONALITY OF THE RE-ELECTION WITHOUT LIMITS IN THE LEGISLATIVE POWER:
THE REPUBLICAN PRINCIPLE AS A FUNDAMENTAL VALUE FOR THE RENEWAL OF THE BRAZILIAN PARLIAMENTS
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Leader : DIRLEY DA CUNHA JUNIOR
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MEMBRES DE LA BANQUE :
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DIRLEY DA CUNHA JUNIOR
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LUIZ CARLOS SOUZA VASCONCELOS
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RICARDO MAURICIO FREIRE SOARES
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Data: 18 févr. 2019
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Afficher le Résumé
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The present study tries to verify if the absence of limits for the reelection in the scope
of the Legislative Power is in constitutional harmony with the Republican Principle. As
a theoretical basis, the idea is established that, as part of the notion of the Republic,
as a form of government adopted in Brazil, there is the alternation of power and the
renewal of political frameworks. In this line of intellection, we proceed to an analysis
of the explicit clauses implicit in the Federal Constitution of 1988, as well as the
relationship that can be drawn between the periodicity of the vote and the Republican
Principle, seeking the real essence of the periodic vote. In addition to identifying
whether the absence of limits for re-election in parliament offends the constitutional
harmony of the Republican form of Government, it is also sought to construct an
incisive critique that can contribute to raise the degree of effectiveness of popular
participation in the electoral contest, the political frameworks and thus allowing the
emergence of new ideas and leadership. It is analyzed the setting of limits for this
parliamentary reelection in other countries, and in the end, a more republican
proposal for the Brazilian constitutional reality is seen.
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4
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MARCELLO SOUZA OLIVEIRA
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THE PRINCIPLE OF SEIZURE FOR CONFISCATORY EFFECT
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Leader : EDVALDO PEREIRA DE BRITO
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MEMBRES DE LA BANQUE :
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EDVALDO PEREIRA DE BRITO
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PAULO ROBERTO LYRIO PIMENTA
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RAYMUNDO JULIANO REGO FEITOSA
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Data: 19 févr. 2019
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Afficher le Résumé
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The present dissertation deals of the constitutional principle of the prohibition to confiscatory effect, listed in article 150, subsection IV, CF-88. It discusses the confiscation, the tax confiscation and the confiscatory effect. And it addresses the principles of isonomy and ability to pay as the basis of the prohibition of the confiscatory effect on taxation. The study aims to explain the range of said constitutional norm. To propose theoretic and legal elements of the principle of prohibition to confiscation. To discourse about the inflows of isonomy, ability pay and proportionality on the non-confiscation. In fuction of this, the research was developed under the descriptive method, and deductive approach, with a bibliographical and jurisprudential survey. In this context, it doesn’t involve the collect, organization and analysis of data, because they are incompatible with the objective of the research. Even in face of the conceptual indefinition, the prohibition to the confiscatory effect shows himself as a fundamental guarantee of taxpayer against the state arbitrage in the institution and the increase of tributes. The confiscatory effect ends up resting on isonomy, ability to contribute and proportionality, since its non-configuration is linked to respect for the above principles. The taxation should be fair, not excessive and reasonable for not to infringe the prohibition of confiscation. It is defended the application of ptohibition of confiscatory effect in their quantitative and qualitative aspect in all tributary kinds.
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5
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ARIVALDO MARQUES DO ESPÍRITO SANTO JÚNIOR
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CONSTITUTIONAL PROTECTION TO CONSUMERS 'PRIVACY AND PRIVATE LIFE - TRANSINDIVIDUAL DIMENSION
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Leader : RICARDO MAURICIO FREIRE SOARES
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MEMBRES DE LA BANQUE :
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PATRÍCIA VERÔNICA NUNES CARVALHO SOBRAL DE SOUZA
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RICARDO MAURICIO FREIRE SOARES
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SAULO JOSE CASALI BAHIA
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Data: 25 mars 2019
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Afficher le Résumé
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This scientific work investigates the constitucional protection of the fundamental right of privacy of consumers as an effect of dignity of the human person. However, the exam goes beyond the frontier limits of constitutional protection from the individual perspective, linked to a single consumer, abandoning the individualism to which these fundamental rights were attached – and still continue. The challenges faced by intimacy and privacy in contemporary society are enormous. These rights are presented as a way to avoid that the technological advance, together with the population growth and the consequent territorial occupation, could violate the right to be let alone, without interference from others, especially in consumers relations. The research was based on the doctrinal investigation and literature review on the protection of the privacy of the consumers, adopting a deductive method and a qualitative approach. Analyzing the theme, several problems are presented, such as the position of fundamental rights in private relations, the concepts, extent and limits of the privacy, as well as their relationship to the rights of the personality sustained by human dignity, the transindividual justification of these rights, including as a way of appeasing obstacles to acess to Justice and how the privacy should be protected against the massive dissemination of consumers data, the credit score practice and the right to be let alone. The results will show that private relations are marked by the phenomenon of private power and that, therefore, fundamental rights enjoy horizontal effectiveness. However, the recognition of horizontal implementation has not yet been accompanied by the full effectiveness of the fundamental rights, a deficiency associated with late brazilian constitutionalism, the absence of constitutional sentiment, and the dissociation between collectivization of rights and procedural individualization. The work analyzed the laws 9.296/96, 12.414/2011 (positive register), 12.527/2011 (access to information), 12.965/2014 (civil internet landmark) and 13.709/2018 (general data protection law), noting that privacy determines the understanding of consumers data protection under a positive dimension, with the control of their data, represented by information self-determination. These fundamental rights also act as limiters to credit risk analysis, making it impossible to use sensitive, inaccurate, excessive or irrelevant data as indexers to the ranking of the consumer. Finally, it was revealed that the privacy of the consumer justifies the existence of the right to be let alone, understood as the right not to be disturbed and enabling consumers to control the information inputs.
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6
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CYNTIA MARIA DE POSSÍDIO OLIVEIRA LIMA
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THE LEGAL CONTENT OF THE MINIMUM INTERVENTION PRINCIPLE IN COLLECTIVE PRIVATE AUTONOMY
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Leader : RODOLFO MARIO VEIGA PAMPLONA FILHO
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MEMBRES DE LA BANQUE :
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BRUNO FREIRE E SILVA
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LUCIANO DOREA MARTINEZ CARREIRO
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RODOLFO MARIO VEIGA PAMPLONA FILHO
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Data: 1 avr. 2019
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Afficher le Résumé
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The year 2017 was marked by major changes in labor legislation, especially those that were promoted by Law no. 13,467, of July 13, 2017, popularly known as labor reform. The great impact of this reform on Brazilian Labor Law has produced intense and heated debates in various segments of society, many of which are directed at aspects of constitutionality and possible affront to International Conventions, as well as the very principiological basis that underpins labor legislation. This study seeks to provide an overview of the reform undertaken, including an analysis of the procedure that resulted in the publication of Law no. 13.467 / 2017, in order to situate the reader around the normative structure on which the legislative changes were based. The main aim of this work, however, is to focus on a specific aspect related to Collective Law, in order to show the highest value of the principle of private autonomy by the reformist legislator, whether in the field of Individual Labor Law or in the field of Collective Law of Labor and proclaimed haughtily in article 8, paragraph 3, of the new legislation: the principle of state minimum intervention in collective private autonomy. More than emphasizing the importance of this principle, however, the definition of its normative legal content is sought here.
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7
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TAUANA FERNANDES FONTENELLE
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THE RIGHT TO EDUCATION AS AN ASSUMPTION OF CULTURE CONSTITUTIONAL: SEARCHING FOR THE FULL EXERCISE OF CITIZENSHIP
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Leader : RICARDO MAURICIO FREIRE SOARES
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MEMBRES DE LA BANQUE :
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MARCELO LAMY
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RICARDO MAURICIO FREIRE SOARES
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SAULO JOSE CASALI BAHIA
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Data: 8 avr. 2019
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Afficher le Résumé
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Society needs a constitutional culture and the right to education is the refuge for the development of this culture and the full exercise of citizenship. In this scenario, the first step is to understand the need for a written constitution and its treatment as a fundamental and supreme norm, as well as the scope of a specific theory that seeks to bring better effectiveness to constitutional provisions, preserving the will to constitution. Under the new social needs after the Second World War, constitutional law faces new paradigms, determining a redemocratization process, where the debates faced by positivism and naturalism mark the era of post-positivism, determining the rapprochement between Law and Ethics ; the constitutional right undergoes changes in relation to its theoretical application, it is necessary to recognize the normative force to the Constitution through the development of a new dogmatic one of the constitutional interpretation and to realize in the maximum possible level, the constitutional principles and norms. Thus, constitutional culture, although not disseminated by scholars, begins to gain space and it is possible to understand it through theories of philosophy, however society is lacking, the Brazilian educational system is flawed, it is necessary to disseminate knowledge about the constitutional text. In this perspective, the right to education, whose purpose is the full development of the student, his preparation for the exercise of citizenship and his qualification for work is the ideal presupposition for reaching the constitutional culture.
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8
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DÉBORA MORENO DE MOURA OLIVEIRA
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A COLOR, GENDER AND CLASS WAR STUDY ON CONDENATORY SENTENCES OF WOMEN CRIMINALIZED BY TRAFFIC IN SALVADOR
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Leader : ALESSANDRA RAPACCI MASCARENHAS PRADO
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MEMBRES DE LA BANQUE :
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ALESSANDRA RAPACCI MASCARENHAS PRADO
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DANIELA CARVALHO PORTUGAL
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MARIA DE FÁTIMA CARDOSO
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Data: 9 mai 2019
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Afficher le Résumé
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This paper proposes to critically analyse condemnatory sentences of women
imprisoned in Salvador whose convictions were motivated by the War on Drugs. For
such, the only possible path was no other than the one which carried the understanding
of our society as a class divided one, relying on racism and patriarchy as its structuring
elements. The criminal legal system is immersed in this paradigm, and such system is
a control tool of the captalism, which, therefore, reproduces practices of violence and
maintenance of oppression. War on Drugs emerges as na instrument of such control,
basically conforming itself against vulnerable groups, especially black women. In a
genocidal incursion, this War opeartes by leaving behind an undoubtful trace of
violence and pain, as attested not only by academic researches, but also by Nation-
State's official institutions. Therefore, it is urgent for us to focus on such lethality-
charged, necropolitics attending practices.
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9
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TIAGO FERREIRA SANTOS
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COMPLIANCE IN LAW N. 13.303 / 16 AS A MEANS FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS
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Leader : RICARDO MAURICIO FREIRE SOARES
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MEMBRES DE LA BANQUE :
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RICARDO MAURICIO FREIRE SOARES
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JAIME BARREIROS NETO
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ELTON DIAS XAVIER
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Data: 13 mai 2019
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Afficher le Résumé
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This was a study about the legal consequences of understanding the compliance established by Law no. 13.303/16 as a means for implementing the fundamental right to good administration. The method was a qualitative approach of legislation, doctrine and judicial precedents. The author first examined the compliance in Law no 13.303/16 in relation to cordial manager, patrimonialism and systemic corruption in Brazil. Furthermore, to understand the requirements of the compliance, he analyzed what principles are their components and what's their relationship with the fundamental right of good administration. That debate identified an interesting viewpoint on the possibility of an ombudsman, who performs political control, in addition to the Public Prosecutor's Office and Public Defender, who carry out predominantly legal control. It was found that the Law no. 13.303/16 has lots of lacunae, which shows that the whole of this study was necessary since the interdisciplinary and fundamental right of good administration can fill some of these gaps. With this purpose, the systematic interpretation was also utilized, namely the British perspective was investigated, in which six principles are highlighted: proportionate procedures, top-level commitment, risk assessment, due diligence, communication (including training) and monitoring and review. Anyway, more detailed about compliance requirements is the regulation of the Law no. 12.846/13, parameter suggested for fill the gap, because it is a Brazilian statute closer the context than other possibilities.
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10
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RENATO SIGISFRIED SIGISMUND SCHINDLER FILHO
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CRIMINAL PROCEDURAL REFORMS IN LATIN AMERICA THROUGH AN AGNOSTIC PROCESS LOOK: AN ANALYSIS OF OPERATIONS BY ADVERSARY ADVERSARY SYSTEM IN MARGINAL REALITY
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Leader : ELMIR DUCLERC RAMALHO JUNIOR
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MEMBRES DE LA BANQUE :
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SEBASTIAN BORGES DE ALBUQUERQUE MELLO
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ELMIR DUCLERC RAMALHO JUNIOR
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FERNANDA RAVAZZANO LOPES BAQUEIRO
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Data: 30 mai 2019
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Afficher le Résumé
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This thesis aims at analyzing the criminal procedure reform movement in Latin America,
through which the procedure-adversarial system has been applied to project the model’s
eventual impacts on Brazil’s marginal reality. This study is based on an agnostic perspective
of the legal process set on “decolonization”, submitting the reform movement to a critical
view through the “marginal” perspective, so to speak – marginality in relation to the core of
the central power. In order to grant density to the content related to the adversarial system
and differentiate it from the other systems, a careful research of the penal procedural
systems’ state of art was conducted – from the historical point of view to the contemporary
critiques, as well as the ideal types. After this delimitation, a reflection in face of the abstract
approach of systems was made, relating the theme to the instances of control, in order to
demonstrate the co-optation phenomena of the legal discourse. Finished this preliminarily
part, an exam of the reform movement itself was initiated, realizing the approach into two
lines: the first one oriented to the study of the Chilean legal procedure, used as model for
reform in other countries in the region; and the second one directed to the assessment of the
vulnerabilities of the system, projecting possible impacts on the Brazilian reality. Conclusion:
the adversarial system, in the way it has been applied in Latin America, may implement
positive points in the legal procedure as much as grave perplexities, proposing, based on this
finding, the: a) creation of a criminal procedural system designed for the specific needs of the
country, withdrawing from the abstract approach, and aimed at the reinforcement of due
legal procedure, a system which, in this thesis, is called “guarantor procedural system”; b)
the development of a theory of the criminal procedure that removes the legitimization of the
criminal intervention, for the purpose of avoiding the co-optation of legal discourse by the
instances of control. In conclusion, what is proposed is a maximum contention procedural model composed by a guarantor procedural system, anchored on a critical theoretical basis.
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11
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ISMAR BARBOSA NASCIMENTO JUNIOR
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CUSTODY HEARINGS AND THEIR POSSIBLE CONTRIBUTIONS TO THE FORMULATION OF A CRIMINAL PROCEDURE THEORY
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Leader : ELMIR DUCLERC RAMALHO JUNIOR
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MEMBRES DE LA BANQUE :
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ELMIR DUCLERC RAMALHO JUNIOR
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FERNANDA RAVAZZANO LOPES BAQUEIRO
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SEBASTIAN BORGES DE ALBUQUERQUE MELLO
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Data: 30 mai 2019
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Afficher le Résumé
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The present work presents as object of study the institute of custody hearings. These could be another element that compose the Brazilian legal system, were not some nuances of special importance. The Institute is provided for in the Inter-American Convention on Human Rights, and not in the Code of Criminal Procedure, granted during the Estado Novo. In this perspective, the aforementioned hearings, based on a distinct political aspect of the Code of Criminal Procedure, that is, the defense of the custodian vis-à-vis the State, is what inspires the following research question: What is the legal category of custody hearings and what is the possible contribution of the Institute to the formulation of a theory of criminal procedure? Thus, the general objective of this dissertation is to study the possible contributions of the custody audience to the creation of a criminal procedural theory separated from the General Theory of the Process. The purpose of this article is to inquire about the legal nature of custody hearings, besides problematizing them in the light of an authoritarian procedural paradigm versus a democratic model. The research methods used were analytical and legal, and therefore the main methodological tool was the theoretical research, through the reading of legal books, articles, magazines and periodicals found in national and international doctrine on the subject. It was concluded that the custody hearings have the legal nature of a repressive habeas corpus action, including the original meaning of the secular institute: the physical presentation of the prisoner. Thus, one of the main contributions of these hearings to a Theory of Criminal Procedure is to retake the political character of criminal prosecution, far from the theoretical abstractions of the General Theory of the Process, since the prevention of torture is one of the foundations of the institute. On the other hand, although such hearings constitute a guarantee of the individuals in the face of the State, they can be used from an authoritarian filter, in order to even shorten the criminal investigation and mitigate procedural guarantees.
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12
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RODRIGO CASTRO NASCIMENTO
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MENTAL DISABILITIES AND PURE AUTONOMY: CHALLENGES IN RECONSTRUCTION OF "BEING" AND ATTEMPTING TO ENSURE EXISTENTIAL AUTONOMY FOR COGNITION LESSONS
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Leader : MAURICIO REQUIAO DE SANT ANA
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MEMBRES DE LA BANQUE :
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ANA THEREZA MEIRELES ARAÚJO
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LEANDRO REINALDO DA CUNHA
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MAURICIO REQUIAO DE SANT ANA
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Data: 5 juin 2019
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Afficher le Résumé
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The objective of the work is to show the need that law and society have in seeing the person for what he is and not for what he has. The reconstruction that the law is passing on about its meaning in relation to the person, has been influenced by the dignity of the human person, which has made the legal system matured its dealings with its institutes. The theory of incapacities was one of the institutes that modified its conception, and should be seen today as a protective model of the person and not of his patrimony. Another reflection of the aforementioned reconstruction was the beginning of a process of social insertion that aims to combat social stigma, which violates the dignity of the human person and creates obstacles in effecting the restructuring of the law and in society's vision of how to conceive the individual, whether mentally disabled or not. Autonomy is also being directly impacted by this new reinterpretation of the person linked to dignity, equality, solidarity, otherness and cultural pluralism. Autonomy, then, has a new scope, as well as new limitations, being seen not only in the patrimonial and negotiating field in a limited way, but also turning to the existential aspects of the human being, which shows itself as the reflection of the aforementioned reconstruction. the right is passing, more directed to what the person is than to what he has. It is important to point out that this reconstruction has been reflected in the field of bioethics, to which it has developed the principle of respect for autonomy. Being aimed at situations of loss of absolute and supervenient cognition, the aforementioned principle has as one of its purposes, to preserve the will and the decision-making freedom of the person, even if it will lose its cognition. For this to occur, this principle is based on the advance directives of will, having as one of its models pure autonomy, which the present work seeks to bring a proposal to become a judicial procedure, so that in some existential situations, if we try to reconstruct the will of the person, for this is how the ordering should be based: based on the protection of the person, based on otherness, solidarity and dignity.
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13
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RAFAEL DA SILVA SANTANA
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STIMMA OF MENTAL DISEASE AND CIVIL CAPACITY: DISSOCIATION PROSPECTS
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Leader : MAURICIO REQUIAO DE SANT ANA
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MEMBRES DE LA BANQUE :
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ANA THEREZA MEIRELES ARAÚJO
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LEANDRO REINALDO DA CUNHA
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MAURICIO REQUIAO DE SANT ANA
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Data: 5 juin 2019
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Afficher le Résumé
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The present dissertation aims to analyze the influence that stigma supported by people with
disabilities exercises over classic institutes of civil law, notably capacity. From the first edition
of the Civil Code, it is a ceding that the mental illness labeled the subject, whose moorings were
not only social, but directly affected the way this individual carried out business, from the most
basic to the most complex. No attempt was made to understand the limitations that the disease
caused in the person, so that the existence of the disease was sufficient element to restrain the
self-management of the citizen. This panorama came to be updated when the Civil Code was
published in 2002, without, however, delivering a solution consistent with the state of
development of studies related to mental illness and capacity. It is enough to analyze that, even
overcoming the necessary absolute limitation, the verification of any disease of this nature
would, in and of itself, be in some degree of limitation, which may be relative or total. Although
it represented a breakthrough, the solution delivered by the Reale Code proved insufficient to
solve the problem of the capacity for these persons, so that better proposal was delivered by the
Disability Statute, which, for the first time in our legal system, mental illness is not a factor that
leads to civil incapacity. Given this scenario of changes, how has the social perception of the
disabled person remained? Is it enough to dispense the civilian capacity of these subjects to
remove the stigma historically borne by this part of the population? In an attempt to answer
these questions, the relationship between stigma and civil capacity will be analyzed, as well as
the elements that allow the best fit of the disabled person in society.
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14
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HIOLANDA SILVA REGO
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AFFIRMATIVE TAX ACTION FOR THE INCLUSION OF BLACK IN THE BAHIA STATE LABOR MARKET
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Leader : ANDRE ALVES PORTELLA
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MEMBRES DE LA BANQUE :
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WILSON ALVES DE SOUZA
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ANDRE ALVES PORTELLA
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CATIA REGINA RAULINO
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Data: 7 juin 2019
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Afficher le Résumé
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The research investigation is about the extrafiscal function of the tribute, in favor of equality, in the democratic rule of law paradigm. The main purpose is to analyze how social solidarity is engendered by state action and can be reflected in affirmative actions. It is an explanatory research, developed through the deductive method and technical procedure based on bibliographic, documentary and statistical data analysis. It was intended to highlight the different aspects of structural racism with emphasis on Brazilian particularities. The confrontation of the theme begins with the analysis of the social, economic and labor scenario of black people in the country, especially by showing how racial discrimination contributes to the maintenance of inequality in the labor market of the state of Bahia. Subsequently, the interrelationships established by the Federal Constitution between tax activity and social rights will be analyzed and, finally, taxation will be examined as a tool for the promotion of equality through tax incentives legitimized by policies. public It will be proposed a tax benefit attached to the bill and directed to the inclusion of blacks and browns in the Bahian labor market. We sought to contribute to the understanding of the complex theme of racism and to the citizen's awareness regarding the social function of the tribute.
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15
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PEDRO CÉSAR IVO TRINDADE MELLO
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PROGRESSIVITY AS A PROMOTION OF TAX JUSTICE TOOL IN THE NATIONAL TAX SYSTEM: POSSIBILITY OF ADOPTION BEYOND SPECIFIC CONSTITUTIONAL FORECASTS
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Leader : ANDRE ALVES PORTELLA
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MEMBRES DE LA BANQUE :
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ANDRE ALVES PORTELLA
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CATIA REGINA RAULINO
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DIRLEY DA CUNHA JUNIOR
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Data: 7 juin 2019
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Afficher le Résumé
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The present dissertation analyzes the possibility of the ordinary legislator imposing taxes with progressive rates even in the absence of specific constitutional provision in this sense. Therefore, preliminary considerations are made regarding the National Tax System, at which time tax justice is identified as the basis and object of it. After this definition, statistical data are compiled in order to outline the taxation profile in Brazil, concentrated in indirect taxes on the consumption of goods and services that produce a regressive effect by taxing in a proportionally more accentuated way the individuals who belong to the lower social classes. The injustice of the taxation practiced in Brazil is evidenced when comparing the Brazilian tax collection with that of the member countries of the Organization for Economic Cooperation and Development, which is why the constitutionally foreseen instruments that can act as promoters of tax justice are evaluated. In this sense a detailed analysis of the principles of isonomy and contributory capacity, as well as the criteria usually indicated as able to satisfy them, such as the selectivity, the progressivity. Next, we evaluate each of the constitutional predictions related to progressivity, whether it is adopted with fiscal or extra-fiscal bias, in order to perform a critical analysis of them. Finally, the possibility of adopting progressivity as a criterion of tax isonomy based on the contributory capacity is defended and it is defended the possibility of establishing progressive rates in all taxes of the national tax system, regardless of whether they are classified as personal or direct real or indirect, especially in those incidents about patrimony and income.
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16
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ÉRICA RIBEIRO GUIMARÃES AMORIM
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PROCEDURAL CHANGES IMPLEMENTED BY LAW No. 13.467 / 17 TO THE CONSOLIDATION OF THE LAWS OF WORK AND ACCESS TO JUSTICE
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Leader : WILSON ALVES DE SOUZA
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MEMBRES DE LA BANQUE :
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DIRLEY DA CUNHA JUNIOR
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MARIA DA GRAÇA BELINO DE ATHAYDE DE ANTUNES VARELA
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WILSON ALVES DE SOUZA
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Data: 7 juin 2019
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Afficher le Résumé
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This present thesis has aimed to comprehend the main procedural changes made by Law nº
13.467/17 to the Consolidation of Labor Laws (CLL), analyzing them in the light of
fundamental constitutional principles. It has proved necessary to investigate the compatibility
between the aforementioned legal diploma and the Constitution of 1988, as well as with
respect to the international treaties and conventions on human rights ratified by the Brazilian
State. Through a descriptive and purposeful research, it was widely sought to discuss the new
labor process law introduced to the CLL by the Labor Reform of 2017, in addition to present
solutions to the possible nonconformities existing in the aforementioned law. For that, the
basic concepts regarding guaranteeing access to justice and its connection with the labor
process were explained. Additionally, it examined each of the procedural modifications
pertinent to the topic, systematizing the arguments favorable and contrary to the edition of
Law nº 13.467. Afterwards, it was imperative to compare the principles of the fence of social
retrogression and the infeasibility of jurisdiction with the recently approved Labor Reform. It
was also necessary to observe the judgment of the Direct Action of Unconstitutionality
(DAU) nº 5766/DF by the Federal Supreme Court, due to the repercussions that this decision
may give access to the Labor Court in Brazil. In light with that, a critical reflection was sought on the central points developed in this monographic work. Thus, it has become possible to deduce that the guarantee of access to justice, as well as the other fundamental principles, may not be disregarded by an infractions on constitutional norm that goes against the teleological sense of the constitutional order of the country and international treaties and conventions incorporated to the Brazilian legal system.
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17
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VANESSA MASCARENHAS DE ARAÚJO
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THE EFFECTIVENESS OF FUNDAMENTAL HUMAN RIGHTS AND ACCESS TO JUSTICE BY STRUCTURAL JUDICIAL DECISION: FOR A PROPER JUDGMENT BY THE BELO MONTE CASE ANALYSIS AROUND INDIGENOUS PEOPLE
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Leader : WILSON ALVES DE SOUZA
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MEMBRES DE LA BANQUE :
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ANTONIO DE SOUZA PRUDENTE
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DIRLEY DA CUNHA JUNIOR
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WILSON ALVES DE SOUZA
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Data: 7 juin 2019
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Afficher le Résumé
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This study aimed to indicate the structural judicial decision as the instrument of the necessary and appropriate legal system to be carried out by the State-judge in the effectiveness of fundamental human rights in the conflicts where they are involved, at the poles of the procedural legal relationship, rights and interests supported in the Federal Constitution of 1988, based on the promotion of the dignity of the human person, based on the analysis of the concrete complex collective litigation: Belo Monte Case around the indigenous peoples. With this purpose, it was sought to outline the ultimate purpose of the State's jurisdictional function in contemporary times, being related to the effectiveness of fundamental human rights and, consequently, to the realization of access to justice in its substantial plan. Through a bibliographic and documentary research, in an explanatory and exploratory study, in the light of neoprocessalism, a consequence of neoconstitutionalism, it presents the normative basis of this differentiated and atypical procedural technique, of North American origin, before the legal order of the country, in order to support the interference of the Judiciary in the field of public policies, which is not confused with judicial activism. It is a matter of reformulating concepts and dogmas of constitutional procedural juridical science according to the current social, political and legal context so that techniques, procedures and institutions meet the demands of the public power and of the democratic and plural society in order to achieve the effectiveness of the Federal Constitution of 1988
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18
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MATHEUS SOUZA GALDINO
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ELEMENTS FOR A TYPOLOGICAL UNDERSTANDING STRUCTURAL PROCESSES
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Leader : FREDIE SOUZA DIDIER JUNIOR
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MEMBRES DE LA BANQUE :
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FREDIE SOUZA DIDIER JUNIOR
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MARCO FÉLIX JOBIM
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PEDRO LINO DE CARVALHO JUNIOR
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SÉRGIO CRUZ ARENHART
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Data: 10 juin 2019
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Afficher le Résumé
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This study has as its object the elements for a typological understanding of structural litigation. Initially, it contextualizes the subject by means of a critical analysis of the characteristics attributed in doctrine for the structural reform, for the public law litigation and for the polycentric problems. Based on contemporary doctrine, affirms the need for improvements in the understanding and characterization of structural litigation. It maintains that the distinctive foundation results, in the plane of the facts, from a change of rationality (from causal to teleological), directed to a non-immediate transition between states of affairs. At the normative level, it is identified that said transition is proceeded through a procedural application of the theory of principles, where the process is oriented by a normative result that is immediately finalistic, prospective and with a pretension of complementarity. Such a normative structure implies an analysis of finalistic and instrumental aspects through norms second grade. The elements resulting from each of these aspects are responsible for the content and outcome of the structural litigation. In terms of rights, the characteristics of rights protected in a structural litigation are identified, as is the case, including the suggestion of techniques for doing so. From the characteristics found in the study of facts, norms and rights in the structural litigation, it is proposed to identify structural litigation, initially by means of a conceptual reasoning and, finally, by means of a typological reasoning, which will prove more adequate to the reality that it is proposed to identify.
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19
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ROBERTO DE OLIVEIRA MEYER NASCIMENTO
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(MICRO) ECONOMIC ANALYSIS OF THE LEGAL TREATMENT GRANTED TO THE REAL
GUARANTEES FOR THE BALANCE AND RECOVERY LEGISLATION
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Leader : SAULO JOSE CASALI BAHIA
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MEMBRES DE LA BANQUE :
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GABRIEL SEIJO LEAL DE FIGUEIREDO
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JOAO GLICERIO DE OLIVEIRA FILHO
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SAULO JOSE CASALI BAHIA
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Data: 11 juin 2019
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Afficher le Résumé
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The present paper aims to investigate the impacts of the protections provided, by the Brazilian Corporate Reorganization and Bankruptcy Act, to the credits resulting from contracts with securities, through assumptions and instruments related to Economics. The hypothetico-deductive method is applied through bibliographic review, assuming as hypothesis that the presumed objectives of Law n. 11.101/2005 is in line with the actual arrangement of resources and incentives that results from said legislation. The study is based on a descriptive analysis of the securities, from both a legal and an economic perspective, in order to achieve the economic analysis proposed herein. The conclusions reached arise from a material concept of "firm", driving out of conceptions of common sense (either popular or legal). This analysis considers the effects of protection of secured creditors on interest rates and economic development, as well as on the impacts of the priority of secured lenders on the "non- adjustable" unsecured creditors.
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20
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EDUARDA DE PAULA SAMPAIO
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THE FAMILIES OF THE PROVISIONAL PRESIDENTS AND THE LEGAL SYSTEM: AN OBSERVATION FROM DRADITION SYSTEMIC
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Leader : WALBER ARAUJO CARNEIRO
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MEMBRES DE LA BANQUE :
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DANIEL NICORY DO PRADO
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GEOVANE DE MORI PEIXOTO
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WALBER ARAUJO CARNEIRO
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Data: 11 juin 2019
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Afficher le Résumé
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The purpose of this study is to observe, from a systemic perspective, the
communications established between the legal system and the family system in
relation to provisional prisoners, especially those still awaiting trial from a court of first
instance. Based on the hypothesis that the legal representation of the prisoner in the
criminal procedure is not always adequate and sufficient, the research sought to
investigate if families act as informal representatives of the prisoner before the legal
system, and which structural couplings would enable this intersystem communication
between the legal system and the family system. The main objective was to observe
this scenario and analyze the role of legal operators, seen here as structural couplings,
in this interaction between family members and the legal system, and whether there is
a possibility of improving this intersystem communication, increasing stability and
sustainability of both social systems. For that, an empirical research was conducted at
the Criminal Court of Salvador, Bahia, Brazil, for a period of six months, when semi-
structured interviews were conducted with provisional prisoners’ relatives, judges,
prosecutors, civil servants and public defenders. The conclusions presented in this
dissertation were the result of the analysis of the data collected, based on the chosen
system-theorical reference.
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21
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CAMILA BASTOS BACELAR COSTA
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CONSTITUTIONAL PROTECTION FOR EFFICIENT URBAN MOBILITY NOBRASIL
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Leader : JOAO GLICERIO DE OLIVEIRA FILHO
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MEMBRES DE LA BANQUE :
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FABIO PERIANDRO DE ALMEIDA HIRSCH
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GABRIEL SEIJO LEAL DE FIGUEIREDO
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JOAO GLICERIO DE OLIVEIRA FILHO
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Data: 11 juin 2019
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Afficher le Résumé
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The present research investigates the efficient urban mobility institute and its constitutional
protection in Brazil. It carries with it a theme of undeniable pertinence and currentness, for it
addresses one of the main demands to be faced in large urban centers. In addition to the subject’s social, environmental, economic, legal and academic relevancy, in the country’s contemporary political/economic scenario and, despite its, still incipient, approach and deepening, especially in the legal sphere, its uniqueness is, also, evidenced. Starting from a historical contextualization and the fundamental and social rights’ characterization, the study’s theoretical foundation is built in the sense of basing the efficient urban mobility categorization as a social fundamental right, the pivotal assertive to this scientific work. Furthermore, from the proposed problem, which is of identifying the limitations to the urban mobility effectiveness in Brazil, this dissertation, classified as bibliographic exploratory and from legislation’s revision, with a qualitative and multi-methodological approach, also aims to promote a legal analysis of the constitutional protection delivered to this social right, legitimizing the pursuit for the implementation of urban policies from sustainable development. Therefore, the most relevant constitutional dispositions that protect the targeted right will be analyzed, as well as its implications, highlighting the constitutional basis of efficient urban mobility and contextualizing it with the existing urban institutes, in order to satisfactorily provide its global protective outlook in the national legal system, thus, finally, starting from the detected impediments, pointing out the available instruments to its transposition and realization in a substantial dimension.
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22
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MARCIO AUGUSTO FERREIRA MOURA COSTA
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"ADVANCE DIRECTIVES OF THE WILL (DAV) AS AN INSTRUMENT TO PROTECT THE AUTONOMY OF THE ELDERLY:
BEYOND THE INTERDICTION"
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Leader : MAURICIO REQUIAO DE SANT ANA
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MEMBRES DE LA BANQUE :
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ANA THEREZA MEIRELES ARAÚJO
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LEANDRO REINALDO DA CUNHA
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MAURICIO REQUIAO DE SANT ANA
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Data: 12 juin 2019
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Afficher le Résumé
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The present dissertation proposed the use of the Advance Directives as an instrument to achieve the autonomy of the Elderly Person with dementia (focusing mainly on Alzheimer's Disease). With this aim in mind, the research began to investigate the autonomy within the Civil Law, effecting not only the analysis of its content, but also of its possible meanings. The aim of this study was to explore the challenges of the elderly's disease process, as well as the four main types of dementia: Alzheimer's disease, vascular dementia, dementia with Lewy bodies and frontotemporal dementia, explaining diagnoses, medical treatment, and the insidious nature of these pathologies and how much they interfere in the exercise of existential autonomy and in all the meanings that an autonomous life has, consequently slipping, in the area of civil capacity. Because of the chosen cut, it was justified why the Disabled Person's Statute was not applied to solve the problem of the elderly
person with dementia, when proving the inadequacy of the institution of the Decision- Making Support if it was intended for the elderly person affected by some dementia
which minimizes their volitional capacity and their existential autonomy. Finally, it was defended the effectiveness of a manifestation of will performed at a time prior to dementia, as a prophylactic strategy, providing the instrument with greater legal certainty, addressing the different types of Advance Directives of Will, comparing the constitutional systems Spanish, Portuguese , of the countries of Latin America where the Directives Advance of Will have been regularized with the Brazilian reality, still missing with regard to the implementation of the directives. Attempts were made to give a new nature to the Advance Directives of Will, broadening its meaning beyond its medical content, aiming to make it viable as an instrument to promote existential autonomy, including the patrimonial aspect of the individual.
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23
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LUANA GOMES RODRIGUES HORIUCHI
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RETIREMENT OF PERSONS WITH DISABILITIES IN FAVOR OF PEOPLE WITH SCHIZOPHRENIA: ADOPTION OF
DIFFERENTIATED CRITERIA FOR THE GRANTING OF SCHEDULED RETIREMENTS AS A TOOL FOR SOCIAL
INCLUSION AND DEVELOPMENT OF EXISTENTIAL AUTONOMY
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Leader : MAURICIO REQUIAO DE SANT ANA
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MEMBRES DE LA BANQUE :
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ANA THEREZA MEIRELES ARAÚJO
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LEANDRO REINALDO DA CUNHA
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MAURICIO REQUIAO DE SANT ANA
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Data: 12 juin 2019
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Afficher le Résumé
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The Constitutional Amendment 47/2005, influenced by the entire international movement to fight for the rights of persons with disabilities, inserted in the Federal Constitution the possibility of making legal requirements more flexible to grant pensions programmed for the benefit of persons with disabilities. In 2013, Supplementary Law 142/2013 regulated the adoption of differentiated requirements for retirement by age and time of contribution in favor of persons with disabilities, adjusting the requirements of social security legislation to the difficulties faced by this minority. The objective of this study is to analyze the extent to which the disabled person's special retirement can be considered a mechanism capable of mitigating the social stigma vulnerability of the person with disability due to psychiatric disorder.
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24
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JOELINE ARAUJO SOUZA
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THE BORDERS OF COLLECTIVE NEGOTIATION
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Leader : LUCIANO DOREA MARTINEZ CARREIRO
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MEMBRES DE LA BANQUE :
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LUCIANO DOREA MARTINEZ CARREIRO
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RODOLFO MARIO VEIGA PAMPLONA FILHO
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SILVIA ISABELLE RIBEIRO TEIXEIRA DO VALE
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Data: 13 juin 2019
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Afficher le Résumé
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The purpose of this dissertation was to identify the limits or frontiers of collective bargaining, either aiming to balance the mismatch between capital and labor, or to preserve this conflict resolution formula so relevant in society. With the advent of the Labor Reform Law (Law No. 13467/17), discussions about this legal innovation became heated that, among other things, brought up the possibility of the negotiated overlap the law. It was investigated the essential premises to collective bargaining, since the concept of conflict to the dimensional understanding of fundamental rights, not without first detaining on the roots of collective treaties, since when this method emerged - as a dispute solver - and its evolution in Brazil. The study examined the theoretical-applied model, whereby it was not only studied the investigation of theory, laws and models of explanation of legal and social facts, but also the solution of practical problems incidentally confronted. The Conflict Theory reassessed the traditional negative connotation attributed to conflict and to postulate social conflict as a mechanism - at least potentially positive - for innovation and social change. It can be said that social relations can be of cooperation or conflict, depending on the degree of incompatibility of interests, and the conduct can be peaceful or violent, depending on whether adopted affirmative or negative practices of conflict. Peace is not, therefore, absence of conflict, since they can coexist. At one point in the evolution of the system of labor relations, social agents make the decision to attract to themselves the mechanisms to resolve their own conflicts. The intervention of the State in labor relations did not exhaust the function of collective private autonomy. It remains evident that the State does not have the means to regulate the conditions of work in each concrete case. The fact to be solved by the Collective Labor Law is not the conflict, but the events of violence that arose in the unfolding of capitalism. Thus, no violence - injury or threat to the right - should be excluded from the appreciation of the Judiciary. Harmony necessarily goes through the guarantee of democratic debate about opposing interests, which is only possible through the affirmation of peaceful conduct of conflict. It is not for the Judiciary, evidently, in its interpretative dynamics, to reduce, in an arbitrary, irrational and inadequate manner, rights safeguarded by law; and it is not in their right, in an irrational, arbitrary and inappropriate manner, to create obligations not provided by law. However, the respect for the provisions of labor collective bargaining does not mean that there is frontal aggression, such devices - if any - at the minimum civilization level established by the Constitution of the Republic and by the mandatory international economic, social and cultural rights, including labor, standards.
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25
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DULCE ANNE FREITAS FEITOSA
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PROCEDURAL FLEXIBILIZATION AS A TECHNIQUE FOR THE EFFECTIVENESS OF THE JURISDICTIONAL TUTLE
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Leader : PAULA SARNO BRAGA LAGO
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MEMBRES DE LA BANQUE :
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DIRLEY DA CUNHA JUNIOR
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EDILTON MEIRELES DE OLIVEIRA SANTOS
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LORENA MIRANDA SANTOS BARREIROS
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Data: 13 juin 2019
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Afficher le Résumé
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This study aims to analyze the eligible species of flexibility procedural ruled by the lawmaker in order to find an effective purpose of procedural law provision. Based on a theoretical background to this end, Gajardoni and Oliveira made a research focused on a main goal to analyze in which level the procedural flexibility is a technique that enables the conference of the effectiveness toward the judicial protection. (Judicial Guardianship). Bibliographical research from a literature review with critical and dogmatic approaches revealed itself as the most appropriated methodology to the accomplishment of this work. The study results show that: (i) the procedural rites abstractly expected by a legislator do not show to be efficient and able to benefit an effective provision of person ́s guardianship rights ; (ii) a change in the procedure for adequacy as well as adaptation is a technique that serves to confer effectiveness to a procedural guardianship harmonizing a self-sufficiency of the parts with the public process character; (iii) there are boundaries for the procedural flexibility; and (iv) the changes in the procedure that have been opened to the parts as well as the conventions over onus, powders, faculties and obligations can limit the judge instructional powers for the wellbeing of the effectiveness of the guardianship rights. It comes to conclude that a procedural flexibility is an effectiveness technique of the jurisdictional provision in the protection of the physical right vindicated by either adequacy or adaptation.
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26
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RAFAEL BLUSKY PINTO DOS SANTOS
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Recognition, Recognition and the Evolutionary Paradox of Law
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Leader : DANIEL OITAVEN PEARCE PAMPONET MIGUEL
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MEMBRES DE LA BANQUE :
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ARTUR STAMFORD DA SILVA
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DANIEL OITAVEN PEARCE PAMPONET MIGUEL
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WALBER ARAUJO CARNEIRO
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Data: 17 juin 2019
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Afficher le Résumé
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The present work hasas itsgoal theinvestigation of the paradoxicaldynamics of the
evolution of the legalsystem in its relation to mattersof social justice, especially
those concerning thelegal position of people with mental disorders. The aim isto
achieve this intent by combining the conceptualapparatus of NiklasLuhmann's
theoryof autopoietic socialsystems regardingthe legal system, and the prescriptive
approach of theories of socialrecognition of both the capabilities'approach (Sen;
Nussbaum) and intersubjective recognition(Honneth), intermediated by the hybrid
variant of criticalsystems theory, adoptingan emancipatory perspective as the
background to the analysis of the change of thedisabilities regime in Brazilian civil
lawby the Statute on Persons with Disabilities. Presentedas relevant themes of the
work are the exploration of the paradoxical relations of production of legal certainty
and uncertaintyin modern society, and howan appropriate model of analysisof
recognition-based legal cases grounded on conceptions of justice would be outlined.
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27
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RODRIGO ALVARES CARNEIRO
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FACTS VALUED NORMALLY IN THE EVOLUTION OF BRAZILIAN LAW
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Leader : DANIEL OITAVEN PEARCE PAMPONET MIGUEL
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MEMBRES DE LA BANQUE :
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ARTUR STAMFORD DA SILVA
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DANIEL OITAVEN PEARCE PAMPONET MIGUEL
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WALBER ARAUJO CARNEIRO
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Data: 19 juin 2019
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Afficher le Résumé
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This work aims to offer a descriptive model on law and its changes based on Miguel Reale's Three-dimensional Theory of Law and on Niklas Luhmann’s System Theory. The research is primarily bibliographical. It emphasizes works by the two authors that compose its main theoretical framework and some scholarly works on their theses as well. In the final chapter, however, offering an example of how the proposed model works demanded a study of Brazilian judicial opinions, statutes on domestic violence, and scholarly works on Criminal Law and Criminal Law Procedure. In the end, it was concluded that legal studies could benefit from descriptions of law’s evolutionary processes of change which take into account that law, at the level of its elements, is a complex set of communications about normatively valued facts of an attributive bilateral nature and, at the level of its structures, concerns communication about legal models that aim to guarantee congruent and generalized normative expectations.
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28
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ALESSANDRA CAVALCANTE SCHERMA SCHURIG
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IF METAPHYSICS DOES NOT EXIST, IS ALL ALLOWED? A DIALOGUE BETWEEN THE TRUTH, THE LAW AND THE CONTINGENCY BEHIND POST MODERNITY
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Leader : DANIEL OITAVEN PEARCE PAMPONET MIGUEL
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MEMBRES DE LA BANQUE :
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DANIEL OITAVEN PEARCE PAMPONET MIGUEL
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RODRIGO DE OLIVEIRA KAUFMANN
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WALBER ARAUJO CARNEIRO
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Data: 21 juin 2019
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Afficher le Résumé
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Supporting philosophical paradigms for legal theories sometimes adopt, sometimes camouflaged, metaphysical dualisms represented by premises such as essentialism, Archimedean point, intense rationalization, denial of the hermeneutic plan, use of language as a means of representation, refusal of contextualism and adoption of absolutism. transcendental and thus end up using substantialist theories of truth, developing a judicial hermeneutics oriented toward the pursuit of objective truth. As a counterpoint to juridical metaphysics, positivism emerges seeking to remove the moral sphere from the law, but, likewise, dealing with the truth theme through substantialist theories, allowing the conclusion of the inadequacy of both ways to a right that must be inserted in the law. postmodernity, taken as a polycontextural epoch and of fragmentation of metanarratives with the disclosure of freedom and contingencies. It is proposed that in the face of postmodernity, law ceases to suffocate contingencies and assume dissolution of metaphysical dualisms through the adoption of a deflationary theory of truth as the theory of truth as redundancy, which will enable the deconstruction of metaphysics by liberal ironist criticism and the development of a theory of justice and an ironistic-pragmatic hermeneutic allied to the moral sphere, but of a fallible, minimalist and consequentialist nature, abandoning the search for objective truth and focusing on problem solving.
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29
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LEANDRO VENICIUS FONSECA ROZEIRA
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THE CONTRIBUTION OF EDMUND BURKE'S POLITICAL THEORY TO JUDICIAL DECISION-MAKING ACTIVITY IN THE
CONTEXT OF CONTEMPORARY DISENSUS
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Leader : DANIEL OITAVEN PEARCE PAMPONET MIGUEL
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MEMBRES DE LA BANQUE :
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DANIEL OITAVEN PEARCE PAMPONET MIGUEL
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RODRIGO DE OLIVEIRA KAUFMANN
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WALBER ARAUJO CARNEIRO
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Data: 21 juin 2019
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Afficher le Résumé
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This work aims to approach the question of judicial solipsism, understood as the attitude of the judge to put his individual conscience above any other conditioning, on the basis of Edmund Burke's reflections on the Revolution in France, through the lens of Gadamer's philosophical hermeneutics, making them compatible with openness to the problem of dissent and to the reality of pluralism. For that, a bibliographical research was carried out in relation to several ways in which judicial discritionarity was dealt with in Law. In addition, works have been used that adequately address the issue of pluralism and the complexity of contemporary fragmented society. A historical course has been chosen which has linked judicial discritionarity to legal positivism, and, more recently, to the weighting and balancing of principles. Through the use of Burke's insights, it was tried to demonstrate the importance of the approach of concreteness in relation to the judicial decision and of the paradox located in the relation between the continuity and reform of the Law. In the end, it was concluded that the use of Burke's historical reference is compatible, not only with the consistency of Law, considering all that the legal tradition has produced until the moment of decision, but also the responsiveness of law to the actual concrete demands of the plural society.
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30
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JOSÉ LEANDRO PINHO GESTEIRA
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AWARDED DECLARATION: LIMITS TO THE NEGOTIABILITY OF FUNDAMENTAL RIGHTS BETWEEN STATE AND DELATOR.
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Leader : SEBASTIAN BORGES DE ALBUQUERQUE MELLO
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MEMBRES DE LA BANQUE :
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ELMIR DUCLERC RAMALHO JUNIOR
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SEBASTIAN BORGES DE ALBUQUERQUE MELLO
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YURI CARNEIRO COELHO
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Data: 16 juil. 2019
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Afficher le Résumé
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The present dissertation studies the expansive process of Criminal Law focusing on the Institute of Awarded Delight that, although not new, is an instrument of this expansive process. Initially, it analyzes the process of expansion of criminal law and how business justice has influenced the institutes, in other countries as well as in Brazil, demonstrating how the awarding of the prize grows as an instrument of this expansion. Afterwards, the awarding of the award as a product of the risk society is analyzed, not because it is new, but because of the functions it has played in the expansive process of Criminal Law. The reading leads to an analysis of the law of organized crime that serves as a paradigm for a closer analysis of the awarding agreement, since it is the legal instrument that details the institute. At this juncture, we identify the fundamental rights of defense (not self-incrimination, ample defense and prescription) that end up being negotiated in the agreements in the face of the necessity of the State to promote a benefit right (public security), and it is analyzed to what extent these rights can be dealt with in the agreement. Finally, a concrete case from the "Lava-Jet Operation" is used to identify if in practice, fundamental rights are having their essential nuclei preserved in these agreements.
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31
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FERNANDA FERREIRA DOS SANTOS BACELAR SILVA
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THE EBIOETIC BASIC LIMITS GOD OF DNA EDITING TECHNIQUE IN A COMPLEX SOCIETY
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Leader : WALBER ARAUJO CARNEIRO
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MEMBRES DE LA BANQUE :
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ANA THEREZA MEIRELES ARAÚJO
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DANIEL OITAVEN PEARCE PAMPONET MIGUEL
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WALBER ARAUJO CARNEIRO
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Data: 30 juil. 2019
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Afficher le Résumé
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This work aims to carry out a bioethical and systemic analysis about the fundamental
right to health, in a sociological perspective, in view of the use of the technique of
DNA editing, as a way of guaranteeing the health, life and dignity of the human
person. Currently, the use of the aforementioned technique inserted in the context of
genetic engineering, finds several questions due to its invasive nature, while it
implies a change in the DNA chain, although in specific points. While the scientific
advance is necessary, since DNA editing is a fundamental step, especially in curing
diseases that are incurable and difficult to treat today, many believe that the risk of
misuse of gene manipulation is extremely high. their use for eugenic or breeding
perfect babies. Thus, it is necessary to trace bioethical and legal limitations to the
use of the technique studied, from the perception of the interaction between the
subsystem of bioethics and the health system, inserted within a complex society in
which communication is the base of evolution itself. Thus, the author proposes to
investigate, from a sociological conception of fundamental rights, the fundamental
right to health, constituted as a social system, which has in itself inserted the
subsystem of bioethics, in order to better understand what is the technique of DNA
editing and the limits and rules that must be thought and imposed for its use in a
moral, ethical and legal way, without prejudice to scientific evolution or risk to
humanity.
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32
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DIOGO LOUREIRO RIBEIRO
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TAX LAW: TRANSVERSALITY OF ACCOUNTING AND LEGAL SIGNS
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Leader : EDVALDO PEREIRA DE BRITO
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MEMBRES DE LA BANQUE :
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PAULO ROBERTO LYRIO PIMENTA
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ROSMAR ANTONNI RODRIGUES C. DE ALENCAR
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EDVALDO PEREIRA DE BRITO
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Data: 1 août 2019
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Afficher le Résumé
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The present work aims to study the discipline and limits of the semantic content of accounting signs, that is, the cognitive process of constructing concepts and definitions of their words when they enter the legal world. It seeks to answer if the theoretical constructs of this branch of human knowledge have relevance in the construction of their meanings. Since Law is a closed system, where content is determined by codification processes, the law is verified as a mechanism of semantic precision, as well as the incidence of disciplines of other branches of Law in the tax field. In this sense, it was necessary to take a position on legal and tax exegesis, focusing especially on Income Tax and Social Contribution on Net Income, since most of the accounting signs are disciplined in these taxes. Seeking a methodology capable of analyzing the transversality of accounting and legal signs, it used hermeneutical criteria capable of constructing constitutional-tax concepts, specifically within the scope of the materiality of its rules of competence, because commonly the Constitution has to deal with metajuridic signals, analyzing its influence for interpretation. We used Larenz's methodology to determine the possible literal meaning, based on both the study of semiotics and the pragmatics of legal communication.
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33
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ALESSANDRO TIMBÓ NILO
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PATIENT-MEDICAL RELATIONS BEYOND CONSUMER PERSPECTIVE: A PROPOSAL FOR A TREATMENT CONTRACT
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Leader : MONICA NEVES AGUIAR DA SILVA
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MEMBRES DE LA BANQUE :
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JESSICA HIND RIBEIRO COSTA
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MAURICIO REQUIAO DE SANT ANA
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MONICA NEVES AGUIAR DA SILVA
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Data: 14 août 2019
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Afficher le Résumé
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The following theses aims to reflect upon the emancipation of patients, as subjects of law bearing human dignity, as well as for the formation of Medical Law as an autonomous legal branch in the Brazilian legal system, from the identification of the legal nature of the relationship established between patient and physician when in a therapeutic or diagnosis act. To do this, based on a bioethical foundation and on the theory of communicative action, the suggestion is made that a new contractual figure - the treatment contract, as a result of the evolution of patient autonomy in the course of history, that has already occurred in other countries, will favor the understanding and exercise of the rights and duties of the parties involved in this contract. Above all, favoring the patient in the exercise of the right to their biopsychosocial well-being and contributing to a more fair and adequate appreciation of medical civil liability.
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34
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ANA CLARA SUZART LOPES DA SILVA
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TOURISM CONSUMER PROTECTION IN MERCOSUR AND ANALYSIS ON THE EFFECTIVENESS OF INTEGRATION MECHANISMS
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Leader : MARIO JORGE PHILOCREON DE CASTRO LIMA
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MEMBRES DE LA BANQUE :
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JOAO GLICERIO DE OLIVEIRA FILHO
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LAÍS GOMES BERGSTEIN
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MARIO JORGE PHILOCREON DE CASTRO LIMA
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Data: 19 août 2019
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Afficher le Résumé
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The present dissertation deals with the imperious protection of the tourist consumer in Mercosur, through the mechanisms of integration. The question of the existence and effectiveness of legal regulation within the regional bloc that aims to protect the interests of such subjects was regimented as a central hypothesis. It is justified the relevance of this dissertation, due to the importance of the theme, because the protection of tourists consumers is a subject of international responsibility, which enables the improvement of the living conditions of the subjects, through the guarantee of social justice, as well as strengthening integration between countries and increasing market competitiveness, which provide greater economic development. The general objective is to examine the documents instituted under the aforementioned regional bloc in order to protect tourists, as well as investigate whether through these instruments the scope of safeguarding the rights of international tourists standards is fulfilled effectively. This Master Thesis fits the research line: “Fundamental Rights, Culture and Social Relations”, as it analyzes the protection of the tourist consumer in Mercosur, in order to ensure the effective protection of their fundamental rights in postmodern society. The structure of the present dissertation was divided into four chapters, with the aim of better examining the controversial topics on the topic. In the first chapter, there is a sociological examination of tourism, addressing the main stages of capitalism to the hypermodernity, currently experienced, and its relationship with the progress of this activity in the consumer market. Likewise, a historical digression is carried out on the aforementioned phenomenon, as well as a study on the concept, characteristics, modalities, types, forms, motivations, elements and legal regulation of the touristic activity. The second chapter investigates the international and constitutional protection of the tourist consumer in the member countries and associated with Mercosur. In the third chapter, on the other hand, we analyze the legal protection for consumers in the member countries and associated with Mercosur, researching the existence of specific legislation on the subject, as well as weaving comparative considerations between them. The fourth chapter examines the main aspects of Mercosur, such as the reception of its member States to the integration, its institutional structure and the legal protection of the consumer under the aforementioned block. Regarding the methodology, the hypothetical-deductive method was adopted; Regarding the philosophical aspect, we opted for the dialectic and hermeneutics, as to the sociological approach, the historical and monographic methods were employed. Regarding legal methods, the hermeneutic and argumentative models were selected; Regarding the methodological lines, the methodological critic was followed; Among the generic types of research, we adopted the historical-juridical, legal-exploratory, legal-projective and prospective. In relation to the projected objectives, exploratory research was used; Regarding technical procedures, bibliographic and documentary research was carried out. It concludes that it is necessary to improve the documents approved by the economic bloc, inspired by the instruments of the European Union, as well as their internalisation by the Mercosur member countries.
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35
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JOSÉ CAETANO DE MENEZES NETO
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LEGAL TAX TYPE CONCRETIZATION REGULATION
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Leader : PAULO ROBERTO LYRIO PIMENTA
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MEMBRES DE LA BANQUE :
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PAULO ROBERTO LYRIO PIMENTA
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ROSMAR ANTONNI RODRIGUES C. DE ALENCAR
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SAULO JOSE CASALI BAHIA
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Data: 20 sept. 2019
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This paper aims to study the regulation by the Executive Branch of the implementation of the legal type foreseen in the hypothesis of tax incidence, analyzing if this normative activity offends the tax legality and typicality. To this end, we analyze the theses developed in the Brazilian doctrine on tax legality and typicality, positioning themselves by an absolute reserve of formal law, whose content is defined by the principle of tax typicality, whose degree of normative density is quantified by the principle of determination. Given its generality and abstraction, the Regulation in the strict sense (secondary normative act issued by the Chief Executive) is the only normative administrative act constitutionally attributed to the implementation of the tax legal type by the Executive Branch, compatible with the absolute reservation of formal law and uniform application of the law, should be observed theoretical, methodological and argumentative criteria based on the legal order to enable effective control of its activity and avoid arbitrariness, ensuring the legal certainty of the taxpayer.
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36
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SIMONY VIEIRA LEÃO DE SÁ TELES
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VOLUNTARY STERILIZATION AND REPRODUCTIVE AUTONOMY OF THE MARRIED WOMAN, IN THE EXERCISE OF FAMILY PLANNING: A FUNDAMENTAL RIGHT OF PERSONALITY.
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Leader : JOSEANE SUZART LOPES DA SILVA
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MEMBRES DE LA BANQUE :
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JOSEANE SUZART LOPES DA SILVA
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LAURICIO ALVES CARVALHO PEDROSA
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MAURICIO REQUIAO DE SANT ANA
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ROXANA CARDOSO BRASILEIRO BORGES
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Data: 24 oct. 2019
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Afficher le Résumé
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The main objective of this investigation pertains to the (un) constitutionality of paragraph 5 of article 10 of the Family Planning Law, Law no. 9.263 of January 12, 1996, according to which, under the constance of marriage, sterilization depends on the express consent of both spouses. The investigation was conducted through exploratory research with the use of the hermeneutic and argumentative methods; as well with the adoption of indirect documentation technique and bibliographical research (literary and documental). The central hypothesis is that the statutory obligation of consort bestowal so that a married person can perform sterilization is unconstitutional, because it affronts fundamental rights such as freedom, reproductive autonomy, right to one's own body and human dignity. The research problem consists in examining the right to personal autonomy in the context of family planning, specifically in its existential aspect, which relates to reproductive autonomy, as it is a fundamental right that favors a dignified life. This is specially true for the married woman, considering the gender disparity problem. The text is divided into five chapters. First, a historical and conceptual overview is made on family planning, surgical sterilization, sexual and reproductive rights both in Brazil and around the world, as well as on the feminist struggle for the recognition of these rights. Afterwards the study advances to the body of legal personal autonomy and its reframing after the Constitutionalization of Civil Law phenom. Finally, the issue of the reproductive autonomy of married women is approached as a principle applied to international sterilization practices, studying its relationship with human dignity, its exercise within the family, its possible limits, and criminalization; as well as the study of family planning as a positive right opposed to the state, its legal and social implications, in addition to its repercussion in case law. Thus, it is concluded that paragraph 5, article 10, of Law no. 9.263 of January 12, 1996, is unconstitutional, and as such, the rule should be removed from the brazilian legal system.
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37
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SÂMELA SANTANA VIEIRA OLIVEIRA
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THE RIGHT TO PEACE IN THE ASPECT OF PROTECTION AGAINST SOUND PERTURBATION UNDER THE VIEW OF PROPERTY ENVIRONMENTAL FUNCTION
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Leader : LEANDRO REINALDO DA CUNHA
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MEMBRES DE LA BANQUE :
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LEANDRO REINALDO DA CUNHA
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ROXANA CARDOSO BRASILEIRO BORGES
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THIAGO CARVALHO BORGES
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Data: 30 oct. 2019
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Afficher le Résumé
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The research aims at analyzing the interactions between the environmental function of property and the right to rest in the context of neighborhood relations, in the bias of sound disturbance protection, based on the study of information collected in legislation, doctrine, jurisprudence and historical-evolutionary aspects, in order to observe the dynamics of the institutes. In this sense, we sought to understand the transformations of Civil Law, under the influence of the constitutionalisation phenomenon in 1988 and the recodification of 2002, in order to identify its meaning, structure and function in the present day. It was analyzed the institute of the right to peace, understanding its historical evolution, concept, principles, characteristics, structure and function in contemporary society, observing the doctrinal and jurisprudential understanding, with the objective of understanding the importance and importance given to the right to peace in the various spheres of State action. It was also considered the relations of Civil Law with Environmental Law, observing its influences. In addition, we analyzed the institute of the environmental function of the property, its historical-evolutionary aspects, conceptualization and characteristics. Then, reflections were made on the possible relations between the institutes of the right to the quiet and of the environmental function of the property in the neighborhood relations, before the demands of overcoming the ecological crisis, through analysis of the institute of the right to the quiet, of the property, its social and environmental function, with a perspective aimed at analyzing the direct applicability of fundamental rights in the sphere of private relations and their respective reflections.
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38
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FLAVIANO NICODEMOS DE ANDRADE LIMA
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THE END OF RETIREMENT FOR CONTRIBUTION TIME IN THE SCHEME OF SOCIAL SECURITY: ANALYSIS IN THE LIGHT OF THE PRINCIPLES OF SOCIAL SOLIDARITY AND BALANCE FINANCIAL AND ACTUARIAL
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Leader : ANDRE ALVES PORTELLA
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MEMBRES DE LA BANQUE :
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ANDRE ALVES PORTELLA
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GUILHERME GUIMARÃES LUDWIG
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LUCIANO DOREA MARTINEZ CARREIRO
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Data: 4 nov. 2019
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Afficher le Résumé
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The main purpose of this study is to introduce retirement minimum age limits to RGPS policyholders, as per the new proposed wording in PEC 06/2019 for item I of § 7 of art. 201 of the Constitution, which eliminates retirement exclusively by time of contribution. The proposed norm is analyzed according to the constitutional principles of social solidarity and the financial balance of social security. In summary, this study aims to address if the RGPS workers retirement minimum age requirement matches the constitutional principles of solidarity and financial balance. The hypothesis is that the RGPS workers retirement minimum age requirement does not offend the principle of solidarity since the contribution time does not represent a social risk, but increases workers protection. To address this question, we analyze the historical context on which the social state and public social security systems had emerged. Subsequently, we analyze the evolution process of the Brazilian workers retirement rules, as well as the Social Security financing rules. After evaluating Brazil’s population aging process and the impacts on Social Security, the study focus on the workers profile. The final conclusion is that the RGPS workers retirement minimum age limit is a required modification, aligned with the principles of social solidarity and financial balance, as it prevents using resources from the social security system to pay early retirements to higher income policyholders.
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39
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LUÍS CARLOS DE SOUSA AMORIM
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THE CONTRADITORY AND LEGAL INTEREST IN THE PRECEDENT'S FORMATION PROCESS
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Leader : PAULA SARNO BRAGA LAGO
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MEMBRES DE LA BANQUE :
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DIRLEY DA CUNHA JUNIOR
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LORENA MIRANDA SANTOS BARREIROS
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PAULA SARNO BRAGA LAGO
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Data: 10 déc. 2019
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The present paper argues for the need to resize the adversarial principle and the notion of legal interest in the light of the ratio decidendi of a judicial precedent. Therefore, it is understood that the contradictory, thought by the classical theory of the process from the individualized norm of the concrete case, must be expanded to include, in all its dimensions, the general norm of a decision, thus ensuring the effective influence of third parties in setting a binding precedent that can reach their legal sphere. Therefore, the widening of the legal interest which enables third parties to intervene in pending proceedings is also necessary, which must consider the actual and potential damage which the judgment of the court may cause. Indeed, the premise of both reasoning is that, to the extent that the Brazilian legal system recognizes the existence of binding decision-making standards (Article 927 of the Code of Civil Procedure), the democratic principle requires that mechanisms for the participation of society be created and rethought to provide the pluralization of the debate around the hermeneutic orientation to be developed. The holding of public hearings and interventions by the group member, amicus curiae and the Public Prosecution Service emerge as instruments capable of realizing this ideal in the process. At the same time, they give greater legitimacy to judicial activity, provide more convincing elements to the judging body and contribute to the development of more qualified and solid precedents. Finally, the research was.
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40
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ÉRICA SILVA TEIXEIRA
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LEGAL IMPLICATIONS ON THE PROHIBITION OF AFFECTIVE RELATIONSHIPS AMONG EMPLOYEES IN THE WORKPLACE
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Leader : EDILTON MEIRELES DE OLIVEIRA SANTOS
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MEMBRES DE LA BANQUE :
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EDILTON MEIRELES DE OLIVEIRA SANTOS
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MARIA DA GRAÇA BELINO DE ATHAYDE DE ANTUNES VARELA
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RODOLFO MARIO VEIGA PAMPLONA FILHO
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Data: 12 déc. 2019
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Afficher le Résumé
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The present work aims to discuss the occurrence of affective relationships between employees in the work environment. With the overvaluation of the professional field, people have dedicated most of their time to corporate obligations and, consequently, end up making the work environment the extension of their life project. With the increase in daily contact between co-workers, there is inevitably a strengthening of affective bonds, a factor that promotes the emergence of affective relationships between employees. The big problem, however, is to analyze the circumstances of the specific case in order to delimit the form of confrontation that companies must adopt in the face of the hypothesis of loving involvement between employees. It is precisely at this point that it revolves around the central idea of work, when analyzing the possibility or not of the employer to adopt measures to curb the emergence of loving relationships between employees in the work environment. For that, it is necessary to evaluate the conflict of interests existing between the employment control versus the fundamental guarantees of the employee, inserted in the most diverse contexts, to only then define if the eventual adoption of prohibitive policies by the companies is allowed or not. companies. To do this, it is necessary to analyze the application of fundamental rights in the Brazilian legal system, both from the perspective of the worker and of free initiative, since both have constitutional protection, and then, in contrast, evaluate the extent of the incidence of control manager of the employer in the labor relations and to what extent this counterpoint of interests interferes in the positioning of the companies in adopting or not prohibitive actions regarding the appearance of loving relationships between co-workers, varying according to the proposed case series. In this context, the main objective of the work rests precisely on examining the banning conduct of companies on the possibility of the occurrence of loving relationships between employees, whether it is in accordance with the extension of the directive control guaranteed to the employer or if there is an extrapolation of the employer's prerogative, implying a violation of the rights to privacy, privacy, freedom, family formation and the free development of the employee's personality, in any case, the resolution of the conflict by means of methods of balancing interests.
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1
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MARCUS SEIXAS SOUZA
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CONSUETUDINARY PROCEDURAL RULES: HISTORY, THEORY AND DOGMATICS
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Leader : FREDIE SOUZA DIDIER JUNIOR
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MEMBRES DE LA BANQUE :
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PAULA SARNO BRAGA LAGO
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FREDIE SOUZA DIDIER JUNIOR
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OTÁVIO LUIZ RODRIGUES JUNIOR
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LORENA MIRANDA SANTOS BARREIROS
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BECLAUTE OLIVEIRA SILVA
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ANTONIO ADONIAS AGUIAR BASTOS
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Data: 14 févr. 2019
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Afficher le Résumé
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This doctoral thesis investigates the admissibility of custom as a source of Brazilian civil procedural law in contemporaneity. Through historical research, it demonstrates how custom has always been a source of law relevant to legal practice in Portuguese and Brazilian legal systems, and concludes by continuing, throughout history, certain legal categories and methodological premises associated with customary law . The research also presents the theoretical contours of custom: its assumptions and normative effects, and its recognition as a source of Law able to construct norms such as rules, principles and metanorms. Next, the research focuses on the custom as a source of contemporary Brazilian law, analyzing the legal system and its methanorms of sources of law. Finally, it investigates the admissibility of procedural customs as sources of Brazilian civil procedural law, the problem of its proof and the functions exercised by procedural custom in contemporary law.
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2
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THIAGO CARVALHO BORGES
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THE RELATIONS BETWEEN INTERNATIONAL LAW AND CONSTITUTIONALIZATION IN THE STATES OF THE GLOBAL SOCIETY: THE EXPERIENCE OF THE CONSTITUENT ASSEMBLY IN BRAZIL 1987-1988
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Leader : WALBER ARAUJO CARNEIRO
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MEMBRES DE LA BANQUE :
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GABRIEL DIAS MARQUES DA CRUZ
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JOSÉ LUÍS BOLZAN DE MORAIS
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MARCELO NEVES
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MARIO JORGE PHILOCREON DE CASTRO LIMA
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WALBER ARAUJO CARNEIRO
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Data: 22 févr. 2019
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Afficher le Résumé
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International law is structured as a system of world society that interacts communicatively with the system of organization created to manifest the constituent power through decisions that will result in the constitutional text. The doctrine describes the system of international law from two harmonious structural models: law of coexistence among the States and law of cooperation. The former emerged as a need for regulation in international community and were important both in the emancipation of European states from other medieval societal organizations and in the domination of the peoples of other continents in the process of colonization. The second was created due to the acceleration of inter-systemic communication resulting from technological progress which, from the second half of the twentieth century, intensified the irritations provoked by the territoriality of States in partial social systems with worldwide programming and operations. This situation transformed the structure of the system of international law, which incorporated a normative model aimed at stimulating cooperation among states. Considering the world society and that international law represents a channel for interaction between states and their environment, it is demonstrated how it happens and which are the effects of the interaction between the system of international law and the National Constituent Assembly, held in Brazil between 1987-88, assumed as a system of organization of society for manifestation of the original constituent power in the decision making that would result in the Brazilian Constitution, promulgated in 1988.
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3
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PEDRO AUGUSTO LOPES SABINO
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CONCENTRATION OF THE PROPERTY OF SOCIAL MEDIA IN BRAZIL: control of power and tutelage of pluralism in the Brazilian constitutional order
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Leader : SAULO JOSE CASALI BAHIA
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MEMBRES DE LA BANQUE :
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DIRLEY DA CUNHA JUNIOR
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JOAO GLICERIO DE OLIVEIRA FILHO
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SAULO JOSE CASALI BAHIA
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THAÍS NOVAES CAVALCANTI
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THIAGO CARVALHO BORGES
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Data: 16 avr. 2019
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Afficher le Résumé
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This work verses on the mass media property concentration in Brazil after the 1988 Federal
Constitution (FC). It focuses on an analysis of the constitutional prohibition of monopolies
and oligopolies, direct and indirect, of the mass media stated on the article 220, 5, of the FC.
This work is justified because the communication sector is highly concentrated, threatening
the normality of the constitution rules, which largely protect the freedom of thinking, both on
a classical dimension, centered on the individual defense against state abuses, and in a
collective dimension, demanding action from the state on abusive practices that intimidate
access to information. The insertion of the Constitutional device on the corresponding Title to
the Social Order evidences that the subject doesn’t relate to the economical plan, constituting
a promotion way to other ends, among them, in a last resource, the political liberty of the
citizens. The constitutional teleology is incompatible with the control of the markets, as it is
with the access control to the socially relevant information. This is evident when one
investigates the characterization of the monopolies and oligopolies prohibited. Concerning the
economical dimension, the identification of exploitation cases of the mass media against the
FC is not satisfactory if not appreciated the simultaneous participation in several markets of
the communication sector and other fields. Regarding the ideological dimension, the
promotion of pluralism impedes the interference on the free public debate, promoting access
to the subject or impeding the excessive control of the sector to exaggerate one of the possible
opinions that defend the majority support. The best interpretation that fits the FC demands
promotes, in Brazil, the convergence of two complimentary experiences: the Italian, based on
the external pluralism, and the argentine, calling the attention on its internal pluralism.
Regarding the mass media, the dominant position not admitted must not depend of adequate
action to impede the access of competition, but the simple state, characterized by the
substantial participation on the market. The method used varied according to the specific
objective of each section of this work: in the first part, I used the induction and deduction; on
the second and third parts, the deductive method. The choice of the judged analyzed was based on qualitative criteria.
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4
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TARSIS SILVA DE CERQUEIRA
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THE COMMON PROCEDURE AND ITS RELATIONSHIP TO THE SPECIAL PROCEDURES: ANALYSIS OF THE REGULATORY CONTENT OF ART. 327, §2, OF THE NEW CIVIL PROCESS CODE
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Leader : FREDIE SOUZA DIDIER JUNIOR
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MEMBRES DE LA BANQUE :
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EDILTON MEIRELES DE OLIVEIRA SANTOS
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FREDIE SOUZA DIDIER JUNIOR
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HEITOR VITOR MENDONÇA SICA
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LORENA MIRANDA SANTOS BARREIROS
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RODOLFO MARIO VEIGA PAMPLONA FILHO
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Data: 29 avr. 2019
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Afficher le Résumé
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The intent of this thesis has been to understand the regulatory stipulations and the efficacydriven content arising from article 327, para. 2 of the Brazilian Code of Civil Procedure (CPC), whether it is understood independently or in conjunction with other provisions. It has been observed that this provision, equally structured with indeterminate concepts, drifts among the so-called general clauses. It has been found that from its wording are borne two general principles that govern, rather innovatively in the legal Brazilian procedural system, the relationship between the common procedure and special procedures. These are the socalled principles of network relationship between the common and special procedures, with a preference for the former. Following the principles arising from this clause, the application of the common procedure was envisioned for all types of techniques and means of procedural differentiation, which heretofore had been associated exclusively with special procedures. At this point, a comparative analysis between two instances was carried out in this thesis. The first, from a traditional standpoint, was characterized by a common procedure based on strict legality, and on the rigidity and inalienability of its structure, under which special procedures were considered exceptional and stagnant route deviations from standard procedure. Special procedures then had virtually no communication with the common procedure, which was to be used only subsidiarily, should a gap appear. In the second instance, art. 327, para. 2 of the CPC allows for the common procedure, now taken to be open and flexible, to become the receiver of the set of procedural differentiation techniques, in order to inaugurate a unique framework regarding its relationship with the special procedures. Besides the mentioned principles in this study, other rules have been assessed, such as the regulatory rules for joinders of claims. An analysis of the issue surrounding procedural compatibility has also been called for. On this point, the rule for the presumption of compatibility that arises from the provision of art. 327, para. 2 of the CPC was assessed. Also present were elements that limit the implementation of the general flexibility clause in this article. This research used a plurality of methods, but focused principally on the critical and interpretive methods, both infused with a constant dialog with the specialized legal literature.
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5
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JAILSON JOSÉ GOMES DA ROCHA
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DECOLONIALITY AND MULTIESPECY COMMUNITY LAW
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Leader : HERON JOSE DE SANTANA GORDILHO
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MEMBRES DE LA BANQUE :
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TAGORE TRAJANO DE ALMEIDA SILVA
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HERON JOSE DE SANTANA GORDILHO
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VICENTE DE PAULA ATAÍDE JUNIOR
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GERMANO ANDRÉ DOEDERLEIN SCHWARTZ
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ALESSIA MAGLIACANE
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Data: 10 mai 2019
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Afficher le Résumé
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Modernity and, consequently, Modern Law, was imposed as a universal phenomenon.
Through this device he ended up hiding his other inseparable face: Coloniality. The
concealment of Coloniality, understood as a condition of Modernity's operative
possibility, ended up proposing a rhetoric of Production of the Right to be followed,
and, ultimately, the construction of Universalism as a technique of domination and
coinage of a civilizing project. In view of this context, we aim in this thesis to describe
how the legal tradition has meant animals and to highlight Latin American experiences
and practices as transformative powers of the legal status given to animals and their
social repercussions. From the legislative, jurisprudential and doctrinal analysis, we try
to analyze to what extent there is a dogmatic body structured from the point of view of
the consolidation of Animal Law as an autonomous branch and if there is an underlying
decolonial epistemological base that can nourish the formulation of disruptive
constitutional models and in a critical conception of Law itself. We start from the
assumption that the relations of Coloniality in the economic, political, pedagogical
spheres of law and other spheres of the Social did not end with the destruction of
traditional colonialism. It is in this sense that animals appear as subjects left over from
power. More, as a category considered as nonexistent or unimportant. The status of
non-existence allows animal reification, since it recognizes a single space allowed to
animality: radical inferiorization. The construction of Animal Law in Latin America was
and is still inscribed in this relationship and the representations of social subjects are
mediated by the Modernity-Coloniality construction. The Southern Wisdoms and
Worldviews were historically subalternized. The formations of the relations and
representations of the animals located in non-hegemonic spaces-times were also
silenced. However, there is an emerging movement of reflection and criticism of the
colonial legal model, notably in Brazil. In this way, it is necessary for the construction
of a critical epistemology to the dominant conceptions of Modernity to think the
Animality from the South, in dialogue. Thus, the aim of this thesis was to search for
textual clues of decoloniality in the judicial decisions that confer, in an innovative way
in the theory of law, the condition of subject of rights to non-human animals and other
natural entities. For this, we use the Critical Analysis of Legal Discourse as a
methodological option, combined with the Decolonial Turn as an epistemic-political
contribution. This time, we recognize the existence of a consolidated legal system in
the Latin American continent that demonstrates great strides in the process of
consolidating the legal and methodological autonomy of Animal Law. Still, we consider
that there is a fruitful field for this desiderato from a decolonial logic of the Right that
recognizes disruptive and alternative models of Constitutionalisms that take into
account in an innovative way the questions afar to the legal consideration and
protection of the nonhuman animals.
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6
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LUIZ CARLOS DE ASSIS JUNIOR
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THE FUNDAMENTAL RIGHT TO REASONABLE ADAPTATION IN THE INTERNATIONAL CONVENTION
ON THE RIGHTS OF DISABLED PEOPLE
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Leader : RODOLFO MARIO VEIGA PAMPLONA FILHO
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MEMBRES DE LA BANQUE :
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ALOISIO CRISTOVAM DOS SANTOS JUNIOR
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CHARLES SILVA BARBOSA
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DIRLEY DA CUNHA JUNIOR
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LUCIANO DOREA MARTINEZ CARREIRO
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RODOLFO MARIO VEIGA PAMPLONA FILHO
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Data: 20 mai 2019
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Afficher le Résumé
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The "Convention on the Rights of Persons with Disabilities" introduced into the Brazilian legal
system the fundamental right to reasonable accommodation. The scope of this thesis is to
investigate the legal content of this regulation, considered itself as an instrument of defense
and promotion of the rights of people with disabilities. An important turning point to be
considered - arising from the Convention itself - entails limiting the fundamental right to reasonable accommodation when its promotion is on an excessive or disproportionate burden
to those to whom the norm generates obligations. Who are the rightholders of the reasonable
accommodation? What differentiates reasonable accommodation from accessibility? Who are
the obligors and what category of duty implied to them by the regulation in question? What
conditions allow the obligors to refrain himself from performing the duty to promote reasonable
accommodation and what are the consequences of not fulfilling this obligation when these
conditions are absent? These are the questions that guided the investigation of what is defined
in the scope of this work as legal content. The investigation is premised on the constitutional
normative force of the right to reasonable accommodation. This is because the "Convention
on the Rights of Persons with Disabilities," the normative source of the right in discussion,
fulfilled the rite defined in art. 5, §3 of the Brazilian Federal Constitution. The exploratory phase
of the research was based on the comparative perspective of foreign law, focusing on the
United States, Canada and the European Union. The choice of these cases was justified by
the early development of the doctrine of reasonable accommodation, even before it was
included in the Convention on the Rights of Persons with Disabilities. The results achieved by
the research demonstrated a existence of three ways of understanding disability: the
biomedical model, the social model and the biopsychosocial model. This last one had been
adopted by the Convention on the Rights of Persons with Disabilities. It was also observed a
delay of six years of the Brazilian legislation in incorporating this new model of understanding
of the deficiency, which occurred only under the legal framework of the 13,146 act. Regarding
the differentiation between the reasonable accommodation and accessibility, the accessibility
as a concept covers all kind of people, considering their different anthropometric and sensorial
characteristics. Their formulations are based on general data obtained from research on the
conditions, functional needs and general health of the population, seeking to reach all in an
autonomous, safe and comfortable way. Reasonable accomodation, on the other hand, uses
qualitative elements with a focus on the individual person, in order to guarantee the overcoming
and prevention of individual and touchable barriers. Among the findings of the research, criteria
for the delimitation of disproportionate burden on the fulfillment of the duties imposed by the
right of reasonable accommodation are presented. The failure to comply with these duties,
absent such criteria, matters in discrimination on the grounds of disability. El incumplimiento
de este deber ausentes tales criterios, se propone, importa en discriminación por motivos de
discapacidad.
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7
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CARLIANE DE OLIVEIRA CARVALHO
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Realization of the law in times of crisis. FOR A THEORY OF DIRECT REFLECTIVE EQUALITY
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Leader : WILSON ALVES DE SOUZA
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MEMBRES DE LA BANQUE :
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CARLOS VALDER DO NASCIMENTO
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DIRLEY DA CUNHA JUNIOR
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LUIZ ANTÔNIO DOS SANTOS BEZERRA
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RICARDO MAURICIO FREIRE SOARES
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WILSON ALVES DE SOUZA
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Data: 31 mai 2019
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Afficher le Résumé
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The present work is dedicated to the verification of democratic legitimacy in the decisions of the realization of a reductionist right of fundamental rights under the argument of the existence of a crisis, which present a formal appearance of legitimate, while opposing The moral authority of the Constitution and, consequently, the interests of the people to which they are intended. The study was cut to the analysis of decisions implemented under the constitutional courts, investigating the legitimacy of the plea of crisis to be sufficient to reduce the fundamental rights of the people, and how it would be. It was concluded by the existence of a methodology of abusive flexibility, permissive of the reduction of fundamental constitutional rights, while the abusive decision maintains the formal appearance of validity. From this result, it was perceived the necessity of the fixation of a new methodology, more rigid and coherent with the desires of the people, with the ideal of social fairness shared by all and present in the collective unconscious. It was proposed, as a possible solution, the methodology of direct reflective equality, whereby the decision maker is reflected in the addressee of the decision, submitting to the same result in a direct way. Corroborating with this methodology, a method of implementation and protection of the ideal of fairness stemming from equality was presented, whereby the people resume the responsibility to self-govern, ultimately deciding on measures that affront fundamental rights, firming itself as a true sovereign power, being formally and materially guarded as such in axiology and in the constitutional text.
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8
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FERNANDO OLIVEIRA PIEDADE
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PATHS FOR RESTAURANT IMPLEMENTATION
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Leader : SELMA PEREIRA DE SANTANA
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MEMBRES DE LA BANQUE :
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ANTONIO SA DA SILVA
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JOAO GLICERIO DE OLIVEIRA FILHO
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MARLI MARLENE M. DA COSTA
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REBECA CERQUEIRA ANDRADE DE ALCANTARA
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SELMA PEREIRA DE SANTANA
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Data: 7 juin 2019
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Afficher le Résumé
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The purpose of this thesis is to implement restorative practices du ring the execution of the sentence as a new public policy, with a view to overcoming the punitive paradigm and culture of incarceration as a result of the crisis that plagues the prison system. Thus, there is a need to adapt criminal and penitentiary policy to new models of public policy. In this sense, the research entitled: ways to a restorative execution presents the following problem: why can not the law of penal execution provide harmonious conditions for recovery and, consequently, the social reintegration of the condemned? The objective of this work is to present the criminal execution as an appropriate ground for the implementation of restorative practices; understand the antecedents and conceptual delineations of restorative justice, and define restorative justice practices and programs. the search. The research, while acknowledging the public policy effort that has been implemented, suggests replacing it with a new proposal in order to come up with ways to reintegrate the prisoner and strengthen community ties. Thus, the thesis presents the emerging field of restorative justice, characterized by dealing dynamically and transversally with practices and knowledge from different areas. bibliographic research was used. As for the research technique used, it is based on indirect documentation, using documentary research, for example: laws and websites, bibliographic research using books, articles on the Internet, specialized journals, theses of Capes.
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9
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DOUGLAS WHITE
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VOTE REPRESENTATIVE AND DUTY OF LOYALTY: LEGAL ANALYSIS OF THE CONFLICTING POSITIONS OFADVISOR BEFORE THE INTERESTS OFCOMPANY AND THE MAJORITY SHAREHOLDER BOARD OF DIRECTORS IN THE COMPANY OF MIXED ECONOMY
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Leader : DIRLEY DA CUNHA JUNIOR
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MEMBRES DE LA BANQUE :
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DIRLEY DA CUNHA JUNIOR
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GABRIEL SEIJO LEAL DE FIGUEIREDO
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JOAO GLICERIO DE OLIVEIRA FILHO
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MARIO JORGE PHILOCREON DE CASTRO LIMA
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THIAGO CARVALHO BORGES
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Data: 17 juin 2019
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Afficher le Résumé
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The present research involves representative voting and the duty of loyalty: legal analysis
of the conflicting positions of the counselor in the interests of the company and the
majority shareholder in the board of directors in the mixed-capital society. It is observed
the environment of corporate law with the experiences and expectations that can come
from the shareholders, in the articulations and the relations created with the market,
affecting the company society. The legal mantle of the mixed-capital company,
understood as a business corporation within the legal framework of the corporation is
conferred. It develops an analysis of the decisions of the member of the board of directors,
with the respective reflections in the company, sequels for the private shareholders and
collectivity. Legal analysis of the positions and conflicts expressed by the board of
directors; the conflicts of interest of the company, the majority shareholder relations or in
the position of controlling shareholder in the joint stock company, and the socioeconomic,
legal and administrative repercussions. The examination of aspects of state intervention
in the economic order. Experiences and expectations of shareholders in the articulations,
relations between market and business society. The damage to the awkward citizen of the
imperfect decisions of the counselor. Combat insidious practices by state-run business
management. The market and the preservation of the necessary Democratic State of Law.
The mixed-economy company and the management acts without the observation and the
attendance by being a business company with good faith, loyalty in the posture of the
counselor, conferring confidence. Corporate governance under the dictates of corporate
governance, with due obligations of transparency, reporting obligation, management
action, equity, accountability. The corporate responsibility and the agents of governance.
The preservation of social and legal order. Comments to be observed by the state business
community.
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10
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JULIANA PINHEIRO DAMASCENO E SANTOS
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DOGMATIC CRITERIA OF CRIMINAL RATIONALITY TO THE FREEDOM OF CONFORMATION OF THE BRAZILIAN
LEGISLATOR: The example of the criminalizing decision of illicit enrichment to face corruption.
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Leader : ALESSANDRA RAPACCI MASCARENHAS PRADO
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MEMBRES DE LA BANQUE :
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ALESSANDRA RAPACCI MASCARENHAS PRADO
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EDUARDO VIANA PORTELA NEVES
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MARIA AUXILIADORA DE ALMEIDA MINAHIM
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MARIÂNGELA GAMA DE MAGALHÃES GOMES
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SEBASTIAN BORGES DE ALBUQUERQUE MELLO
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Data: 3 juil. 2019
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Afficher le Résumé
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The doctoral thesis aims to investigate the rationale under the Brazilian legislative proceeding used behind the creation of convicting criminal laws. The importance of this study is based on the fact that, with few exceptions, this aspect has been ignored by the national criminal science, and there is no systematic investigation whatsoever on the matter. The author started from the hypothesis that, after the enactment of the Federal Constitution in 1988, the legislative proceeding regarding primary criminalization is disconnected from any previous rationale, which is expressed by criminal dogmatic and its ethical reasoning. It is based on the premise that Criminal Law is a science that was created to guarantee public freedom, being legitimized in the Democratic State under the Rule of Law, by constitutional principles. The representative regime and the formal guarantee provided by the democratic elections do not necessarily confer the legislator a rational status, being therefore indispensable that the Legislative Branch be controlled by an epistemologically clarified statement, presenting the reasoning behind their incriminating decisions and thus fostering an argumentative culture during the pre-legislative moment. The research is justified by its practical repercussion as well as by its political importance by virtue of the enforcement of material boundaries on the increasingly criminal discretionary decisions, as well as control the creation of legislations and endorse the values that have been neglected by symbolic and voluntary practices of the parliament. Since there are several questions to which the criminal-legal dogmatic cannot, on its own, provide the answers to the hypothesis of the study, the conclusions were obtained from sociological and political-criminal reflections that resulted from the analysis of the national legislative procedural rite and its cognitive limitations. For the purpose of illustration, we have detached the analysis of the unjust enrichment criminalization proposal enclosed in Bill n. 4,850/2016, an “essential” legal measure of “effective fight” against corruption. The discussion among the actors involved in the pre-legislative and legislative moment was reconstructed and the empirical data provided by the justifications and discussions in the parliament were analyzed based on the inductive method. The thesis contributes to the systematization of the rationality dogmatic criteria regarding the Brazilian criminal legislators’ freedom to comply.
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11
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ADRIANA BRASIL VIEIRA WYZYKOWSKI
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EMPLOYEE'S PRIVATE AUTONOMY AND VULNERABILITY: CRITERIA AND LIMITS FOR EXERCISING INDIVIDUAL LABOR FREEDOM IN LABOR LAW
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Leader : EDILTON MEIRELES DE OLIVEIRA SANTOS
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MEMBRES DE LA BANQUE :
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ANDREA PRESAS ROCHA
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EDILTON MEIRELES DE OLIVEIRA SANTOS
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MARIA DA GRAÇA BELINO DE ATHAYDE DE ANTUNES VARELA
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RODOLFO MARIO VEIGA PAMPLONA FILHO
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VANESSA VIEIRA PESSANHA
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Data: 5 juil. 2019
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Afficher le Résumé
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Vulnerability analysis of the employee in front of employer – possessor of economical, factual and social powers – on the exercise of the private autonomy was the theme of this research, particularly the existing fleet between the fundamental right of freedom and equality which permeates the study of autonomy. Envisaged that there is no way of talk about the exercise of freedom in balanced relations, it is necessary therefore the unequal treatment allowing a genuine choice´s freedom. Thanks to the economic lack of sufficiency of the employee has been created a protective net in the working world, stopping individual negotiations which was harmful to that person. The occupational private autonomy, while authority on creation of legal rules based on self-healing of will, found barriers in law and collective norms. It was proposed in this thesis the replacement of the concept of labor economic lack of sufficiency with the concept of vulnerability, considered the nuances that surface the employment relationship nowadays to increase the protective net to the frail people, without forgetting their autonomy. For this purpose, were used many methods, prevailing the deductive method proposed by René Descartes, as well as the use of the method developed by Karl Popper. The researching started from general premises until specific premises, carrying out a critical analysis in respect of doctrine, legislation and jurisprudence, with the experimentation of a priori proposals made. Stem from the results, it was verified that economical dependence works like a limitation factor to private labor autonomy, impeding the negotiation. It was suggested, from the personal and technical misinformation of Labor Law content, that trade unions or supporters chosen by the employees should exert care autonomy, beyond the necessity of a term consisting compliance with duty of information signed by the employer. It was determined a counterpart necessity for a liberal negotiation exercising, ensuring to employee’s improvements in your social conditions, besides the observation of employment guarantee. It was stipulated the impossibility of negotiation with hyper vulnerable employees, like pregnant woman, elderly people and disabled about rights that assure them distinguished protection. Lastly, it was verified that traditional limits on private autonomy should be observed, in addition the respect to fundamental rights as limits to liberty exercise. The existence of more favorable collective rule also works as limitation to private autonomy, impeding the individual labor negotiation.
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12
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JOÃO PAULO LORDELO GUIMARÃES TAVARES
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OF THE SANITATION DECISION AND ORGANIZATION OF THE COLLECTIVE PROCESS: A PROPOSAL FOR CERTIFICATION TO BRAZILIAN
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Leader : FREDIE SOUZA DIDIER JUNIOR
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MEMBRES DE LA BANQUE :
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ANTONIO CARLOS OLIVEIRA GIDI
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EDILTON MEIRELES DE OLIVEIRA SANTOS
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FREDIE SOUZA DIDIER JUNIOR
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HERMES ZANETI JUNIOR
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RICARDO DE BARROS LEONEL
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Data: 8 juil. 2019
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Afficher le Résumé
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The aim of the research is to propose the recognition, in Brazil, of a decision similar
to the class certification of the American class actions system, based on the
parameters of the Federal Rule 23. For this, initially some premises were established
for the adequate understanding of the collective litigation phenomenon, such as the
concept of a collective process (to encompass not only collective actions, but also
the test cases), the differences between the notions of group, group member and
representative of the group, as well as the importance of the categorization of
collective conflicts in different sociologically oriented types. Next, the discipline of the
class certification, which is part of the system of US class actions, was explored in
order to reveal its centrality in the scope of due process of law. In the end, it is
possible to demonstrate the importance of recognizing a similar procedural phase in
Brazil, based on the collective micro-system and the discipline of the procedural
organization in the Code of Civil Procedure, highlighting also the complementary role
of the internal regiments of the courts in test cases. In addition, relevant topics that
should be analyzed in the certification decision were proposed, such as the
identification of the group and common issues, group notification, the analysis of
competence and adequacy of representation, participation, as well as the
organization of evidentiary activity in collective processes.
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13
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MARIA PAULO REBELO
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THE ADMISSIBILITY OF PROCEDURAL LEGAL BUSINESS IN THE WORK PROCESS
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Leader : FREDIE SOUZA DIDIER JUNIOR
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MEMBRES DE LA BANQUE :
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ESTEVÃO MALLET
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FREDIE SOUZA DIDIER JUNIOR
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LORENA MIRANDA SANTOS BARREIROS
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MAURICIO REQUIAO DE SANT ANA
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PEDRO LINO DE CARVALHO JUNIOR
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Data: 26 juil. 2019
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Afficher le Résumé
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This thesis begins with a very clear problem set forth by the Labour Superior Court and its Normative Instruction n. 39 in 2016: procedural agreements can or cannot be concluded in the labour procedure? In order to answer the question, we start by framing the hermeneutic dialogue that must discipline integration gaps in the labour procedural system by the civil procedure, and conclude by the need of an evolutionary approach of the former by the latter. Having established this premise, we seek to collect legal grounds from an analysis regarding the framework of the labour system with the rest of the legal system. We then perceive that not only the constitutional and infraconstitutional evolutions of the autonomy of the will in the labour system are favourable to the defence of the admissibility of procedural agreements, as well as realize that the same conclusion can be asserted from the evolution of the debate on individual labour arbitration and on the civil theory of capacities, transformed after the publication of the Statute of the Person with Disabilities. At this point, and after concluding that there is no incompatibility between the principle of the autonomy of the will with the special principles that govern labour procedure, we finally turn to the atypical negotiation clause of article 190 of the CPC, to conclude that both employees’ vulnerability and their alleged unavailability of wage claims are respected. Finally, after explaining the academical and jurisprudential state of the art on the subject matter, we present our guidelines for the application of art. 190 of the CPC into the labour process and provide examples of this possibility. For such purpose we made use of bibliographical and descriptive-dogmatic methodologies
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14
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BERNARDO MONTALVAO VARJAO DE AZEVEDO
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REFLECTING ON THE BASIS OF THE TRADITIONAL LEGAL SYSTEM CONCEPT AND PROPOSING A NEW CONCEPTION ABOUT THEM FROM LESSON BY TERCIO SAMPAIO FERRAZ JR.
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Leader : SAULO JOSE CASALI BAHIA
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MEMBRES DE LA BANQUE :
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JOÃO MAURÍCIO LEITÃO ADEODATO
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NELSON CERQUEIRA
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RODOLFO MARIO VEIGA PAMPLONA FILHO
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SAULO JOSE CASALI BAHIA
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WILLIS SANTIAGO GUERRA FILHO
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Data: 29 juil. 2019
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Afficher le Résumé
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The present work undertakes an effort, in the first moment, to present bases of the traditional concept of legal system and, at the same time, to signal that these bases are already deserving a solid reformulation. And what are these bases? The ideas of unity, completeness and coherence. These are the bases of the traditional concept of legal system. And these bases are presented throughout the research. Soon after, the work, using the doctrine of Niklas Luhmann, begins to lay the foundations for a new notion of system. Further, then, the reformulation of the bases of the traditional concept of the system is carried out, at the same time that new bases for a new concept of legal system are proposed, based on the doctrine of Tercio Sampaio Ferraz Jr.
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15
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VICTOR INSALI
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IMPLEMENTATION OF THE JUDICIAL DECISIONS OF INTERNATIONAL COURTS ON HUMAN RIGHTS IN GUINEA-BISSAU
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Leader : SAULO JOSE CASALI BAHIA
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MEMBRES DE LA BANQUE :
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FERNANDA RAVAZZANO LOPES BAQUEIRO
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MARIO JORGE PHILOCREON DE CASTRO LIMA
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SAULO JOSE CASALI BAHIA
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SELMA PEREIRA DE SANTANA
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THIAGO CARVALHO BORGES
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Data: 30 juil. 2019
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Afficher le Résumé
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La présente recharche discute, d'une manière profonde et critique les mécanismes d’Exécution des Décisions des Tribunaux Internationaux sur les Droits de l’Homme à la lumière du système juridique guinéen. Donc, la recherche est fondamentalement basée sur la Cour Africaine de les Droits de l'Homme et des Peuples (Tribunal), créée pour, dans le plan pratique, mettre en œuvre les droits inscrits dans la Charte africaine, le Protocole et d'autres instruments relatifs aux droits de l'Homme, ratifiés par les États concernés. Dans le système Africain, deux institutions se distinguent dans la tâche de promouvoir et protéger les Droits de l'Homme en Afrique: la Commission Africaine et la Cour Africaine. La recherche analyse également en termes comparatifs les trois systèmes régionaux de promotion et protection des droits de l'homme relatifs à le chemin d'exécution de leurs décisions: européen, interaméricain et africain. Les spécificités très propres à chaque contexte social, historique et politique de chaque société ou continent, ont marqué la différence entre le mode d'exécution de les décisions en chacun de ces systèmes. En analysant la manière d’ exécuter les questions relatives aux droits de l'homme en Guinée-Bissau, on constate un manque de normativité entre les deux systèmes juridiques: le système juridique guinéen et le système prévu dans le Protocole, générant par conséquent une instabilité de décision, où se produit un transfert de responsabilité entre un système et l’autre. La solution est, d’ailleure, l'utilisation des modalités d'exécution des décisions d'autres instances régionales dont la Guinée-Bissau est partie. La nécessité d'une réforme législative du système juridique guinéen est la meilleure solution qui peut protéger,effectivement, la garantie de l'exécution des décisions des organes internationaux sur les Droits de l'Homme en GuinéeBissau.
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16
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LUCAS GABRIEL SANTOS COSTA
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TYPICAL CONDUCT AND VICTIM BEHAVIOR IN CRIMINAL LAW
VICTIM INTERVENTION IN HAZARDOUS FACT
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Leader : MARIA AUXILIADORA DE ALMEIDA MINAHIM
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MEMBRES DE LA BANQUE :
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ALAMIRO VELLUDO SALVADOR NETTO
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ALESSANDRA RAPACCI MASCARENHAS PRADO
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MARIA AUXILIADORA DE ALMEIDA MINAHIM
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SEBASTIAN BORGES DE ALBUQUERQUE MELLO
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ÉRIKA MENDES DE CARVALHO
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Data: 31 juil. 2019
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Afficher le Résumé
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In tort theory, which is the object of this investigation, the appraisal of the victim's
behavior is one of the most controversial themes in the matter of a rational approach
of criminal law. Such controversy extends to the arguments presented to justify the
decline of criminal prohibition stemming from the appraisal of the victim's behavior that
interferes in the dangerous fact. Based on the convergence between the social and
the criminal-legal systems, the present research perceives the need of a criminal-legal
approach that presents arguments which are criminally and politically suitable, as well
as dogmatically aligned, to the complexity present in understanding the exposure of
the victim in the dangerous fact as an element that might influence the characterization
of the punishable fact. In its development, this thesis critically analyses the benefits
and obstacles of constructions about modern tort theory. It establishes the suitability
between the dogmatic structure and the proposal of incorporating a normative
perspective of the meaning achieved by an objective appraisal of the victim's behavior
during the situation of danger as a criterion that reaches the objective wrongdoing of
actors who cooperate to the exposure of the victim to danger. This research seeks to
understand the necessity of typical conduct in situations in which the victim is hurt as
an outcome of his or her own voluntary exposure to a dangerous situation. By way of
a deductive logical approach, the present study shows the insufficiency of the solutions
proposed by the extension of the concept of consent of the offended party, as well as
of the strict liability theory. This work defends the theory of action as a starting point for
appraising the permissiveness of the risk by carrying out a functional and teleological
analysis of the typologies of crime. If the typologies of crime forbid the risks
engendered by third parties, and not those of the wronged party, then there will be no
objective wrongdoing, due to the absence of typical risk, when the danger that
produces the result is that of the victim and not of the offender.
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17
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NILZA MARIA COSTA DOS REIS
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THE POSSIBILITY OF REJECTION OF PATERNITY/SOCIO-AFFECTIVE MATERNITY BY THE JUDICIALLY
RECOGNIZED SON
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Leader : DIRLEY DA CUNHA JUNIOR
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MEMBRES DE LA BANQUE :
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ANGELICA MARIA SANTOS GUIMARAES
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DIRLEY DA CUNHA JUNIOR
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GABRIEL SEIJO LEAL DE FIGUEIREDO
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JOAO GLICERIO DE OLIVEIRA FILHO
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SAULO JOSE CASALI BAHIA
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Data: 31 juil. 2019
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Afficher le Résumé
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The present study deals with socio-affective affiliation, on a one-person or multiple people basis, built on the basis of a public, affective and lasting coexistence of the members of the paternal/maternal-filial relationship, which, despite being acknowledged by the majority of the doctrine, does not eliminate the emergence of new questions that challenge experts on the subject, in the search for adequate solutions to eventual conflicts. In the context of complicated issues, still related to the above mentioned sphere, it is possible to identify the coping of the parents’ old age by the socio-affective child, as well as the fact that usually the doctrine and jurisprudence do not mention the reservation of the child’s right to opt between the maintenance or rejection of the paternity/maternity judicially constituted in his/her favor, but which proved to be harmful and detrimental to the healthy development of the child’s personality. With attention to the possibility of any problems experienced by the child in the coexistence maintained with the one who, in the end, did not act as a father and/or mother, but as a parent deprived of the expected profile for the performance of the noble functions inherent to a responsible paternity/maternity, as prescribed by the Constitution, we maintain its right to the judicial dissolution of the parental relationship that was harmful to the child. Then, after the lack of care, love and performance of the functions and tasks inherent to paternity and/or maternity have been demonstrated, whether on a singular or multiple people basis, and claiming the right to its extinction, when parental involvement has never materialized, thus causing harm to the child, the work also analyzes the constitutive nature of the judicial decision. In doing so, the paper examines the issue from the celebrated work of professor Agnelo Amorim Filho, from the Paraíba state, on the scientific criteria to distinguish the prescription of a right from its decay and to identify lawsuits not subjected to a time limit, which he calls perpetual lawsuits, in order to demonstrate
that the exercise of the child’s right to the dissolution of their paternal/maternal socio- affective relationship is not subject to any time limit. The methodology followed by the
present study led to the analysis of the work of numerous national and foreign scholars, combining them with the examination of constitutional and legal principles and rules, and particularly with the analysis of the jurisprudence of the Superior Court of Justice and the paradigmatic decision of the Federal Supreme Court in the Extraordinary Appeal n. 898.060/SC, in which the admission of multiparentality was
acknowledged, without, however, eliminating the existence of the problems that will be analyzed in the present study. The results obtained, based on a constitutional civil interpretation and also based on the conclusions drawn from the research carried out, point to the existence of the right of the socio-affective child to the dissolution of his/her paternal/maternal relationship, when it is proved that the parent did not have the ability to fulfill the promises made - explicitly or implicitly - in the judicial decision that constituted the relationship.
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18
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FLORA AUGUSTA VARELA ARANHA
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THE PENALTY OF BRAZILIAN TAX LAW
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Leader : EDVALDO PEREIRA DE BRITO
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MEMBRES DE LA BANQUE :
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CLARA CARDOSO MACHADO JABORANDY
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EDVALDO PEREIRA DE BRITO
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MARIA AUXILIADORA DE ALMEIDA MINAHIM
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PAULO ROBERTO LYRIO PIMENTA
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ROSMAR ANTONNI RODRIGUES C. DE ALENCAR
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Data: 1 août 2019
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Afficher le Résumé
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The present thesis studies sanctions in Brazilian Tax Law, specifically the role of monetary
penalty (art. 113 of the National Tax Code) in the light of non-monetary and criminal
penalties (mainly those more severe to the citizen’s personal patrimony and liberty), including
an analysis of the Supremo Tribunal Federal's case law regarding this issue. This research
hypothesis is that the tax obligation may be considered a process in which the State pursues
its revenue purposes. In this context, objective good faith must be respected, especially by the
creditor, to whom the law gives privileges based on the constitutional limitations to the power
to tax. The list of matters reserved to complementary legislation involves the general rules of
Tax Law, including the discipline of obligation, credit, and sanction; therefore, the ordinary
legislator cannot impose increased penalties to the taxpayer. Moreover, in Tax Law, the good
faith requires the observance of the due process of law, both formal and substantial, both by
the legislator and the revenue agents, who are not allowed to harm the taxpayer's liberty or
property. This research studied the intersection of the criminal and the tax spheres,
demonstrating the impossibility of indiscriminate use of the criminal sanction with respect to
tax debts. Lastly, the presented thesis states that the financial penalty is the quintessential
sanction in the Brazilian Tax Law, taking precedence over other penalties, which should be
applied both subsidiarily and adequately to the ends of the tax obligational process, without
harming the citizen’s liberty and property.
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19
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CAMILO DE OLIVEIRA CARVALHO
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POLICY SELECTIVITY AND PASSIVE CORRUPTION IN BRAZIL: AN EMPIRICAL ANALYSIS OF THE DECISIONS OF THE FIRST REGIONAL COURT BETWEEN 2015 AND 2018
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Leader : ALESSANDRA RAPACCI MASCARENHAS PRADO
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MEMBRES DE LA BANQUE :
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ALESSANDRA RAPACCI MASCARENHAS PRADO
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CARLOS VALDER DO NASCIMENTO
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MARIA AUXILIADORA DE ALMEIDA MINAHIM
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SEBASTIAN BORGES DE ALBUQUERQUE MELLO
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YURI CARNEIRO COELHO
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Data: 8 août 2019
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Afficher le Résumé
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Public corruption, which usually involves the functional power mercancia in exchange for improper benefits, has a lower expression in criminológicos studies compared with the street offenses. To assist in reducing this gap, we chose to study the selectivity of brazilian penal system, in the judgment of crimes of passive corruption, based on the decisions handed down by the Federal Regional Court of the 1st Region, from 2015 to 2018. Using the methodology of "Theorizing based on data", adopting the theoretical framework of critical criminology, we understand that we are facing a phenomenon that we call political selectivity, which was divided in two types: selectivity in abstract and selectivity in concrete. The first occurs in the drafting of the norm and stems from the choices made by the legislator in bringing the legal predictability of passive corruption and some procedural criteria that interfere or hinder the judgment of the main cause.The second occurs in the scope of application of the criminal standard, is not identified in the protection of legal goods, but in the selection of individuals. The data cataloged, analyzed qualitatively and quantitatively, throughout the study, reveal that judicial discretion and voluntarist interpretive analysis have been more exercised in the judgments of those who have greater economic power and, in this case, also political, especially around the period of the presidential election. We broadly confirm the hypothesis that the criminal system, in the passive corruption trial, shows a selectivity that maintains the perception of critical criminology: it is an instrument of maintenance of the hegemony of the most favored social classes. However, despite the selection criteria prior to the examination of the merits of the case, among which we highlight the forum prerogative and the occurrence of prescription, practically fulminating the possibilities of judgment, in the processes that involve only members of the political class, two major characteristics were noted:the jus puniendi is exercised in a more austere manner against those who have a superior economic condition and, on the opposite side, against the most vulnerable economically, feature that we call two tips selection; in addition, there are, as a rule, a selection of the information publicized by the courts in trials involving agents of the political class, perhaps as a reflection of greater prestige attributed to them on condition of defendants.
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20
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RAFAELA ALBAN ZANCHETTA
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A REPEAL OF ANALYTICAL CRIME CONCEPT THROUGH THE PRINCIPLE OF REQUIREMENT
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Leader : SEBASTIAN BORGES DE ALBUQUERQUE MELLO
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MEMBRES DE LA BANQUE :
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ALESSANDRA RAPACCI MASCARENHAS PRADO
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FERNANDO ANTONIO NOGUEIRA GALVÃO DA ROCHA
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JUAREZ ESTEVAM XAVIER TAVARES
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MARIÂNGELA GAMA DE MAGALHÃES GOMES
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PAULO CESAR BUSATO
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SEBASTIAN BORGES DE ALBUQUERQUE MELLO
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Data: 9 août 2019
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The present work has a clear objective: through a dialectical research method, it presents the
principle character of the forceability for diverse conduct and the consequent possibility of its
use for a restructuring of the traditionally defended analytical concept of crime, so that it is
feasible to rediscover dogmas and to defend alternative proposals to that one stipulated as
timeless and unquestionably valid, although incongruent in itself, as well as clearly
incompatible with human subjectivation and with the constant changes of a plural social
reality. With the intent of enabling a re-reading of the analytical concept of crime through the
principle of the forceability for diverse conduct , the first chapter is reserved for the display of
the current perception about the forceability and the main doctrinal contributions for the
identification of the failures of the dogmas of positivism, jurisprudence of values, ontologism
and functionalism. In the second chapter, the antithesis is indicated by the introduction, from
the point of view of Discourse Theory, of the forceability for diverse conduct as a widespread
formal principle. Once a new legal nature has been provided for enforceability, the third
chapter is directed towards the need to revise central categories of criminal dogmatics and
the necessary reformulation of the analytical concept of crime, in order to provide a more
rational view of the criminal justice system. After theses and antitheses, in the fourth chapter,
the research synthesis is presented: a re-reading of the analytical concept of crime through
the principle of the forceability for diverse conduct , with the purpose of reorganizing
categories composed by elements that are absolutely incompatible with the foundations of
criminal law and its own essential features. In this way, an alternative dogmatic proposal is
introduced, which, logically, can trigger antagonistic positions that will certainly instigate
debates and contribute to a constant - and always necessary - evolution of the criminal-legal
system
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21
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DEJAIR DOS ANJOS SANTANA JÚNIOR
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CRISIS STATE ON THE INTERACTION BETWEEN HUMAN RIGHTS AND REFUGEE RIGHTS: THE VENEZUELAN CASE
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Leader : RICARDO MAURICIO FREIRE SOARES
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MEMBRES DE LA BANQUE :
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JAIME BARREIROS NETO
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RICARDO MAURICIO FREIRE SOARES
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SAULO JOSE CASALI BAHIA
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ANDREA ISABEL LUCAS GARIN
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PATRÍCIA VERÔNICA NUNES CARVALHO SOBRAL DE SOUZA
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Data: 9 août 2019
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In this thesis we aim to demonstrate that the concept of the term "refugee", provided for in the 1951 Convention and the 1967 Protocol, does not match new facts that have been presented in constitutional reality in recent years. To fulfill this goal, we will seek to discuss the evolution of the constitutional model, starting from constitutionalism to the Cooperative Constitutional State. In addition, we will discuss how the concepts of globalization, sovereignty and democracy are directly linked to a state crisis. We will analyze the role of human dignity in the construction of human rights, and how these rights evolve over time and are associated with the research theme. We will discuss the rules on refugee defense, both nationally and internationally. In the end, we will correlate the concepts previously defined with the case of Venezuelan migration.
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22
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MARCO ANTONIO CHAVES DA SILVA
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CRIMINAL RESPONSIBILITY OF LEGAL ENTITIES AND SIGNIFICANT ACTION
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Leader : SEBASTIAN BORGES DE ALBUQUERQUE MELLO
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MEMBRES DE LA BANQUE :
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ALESSANDRA RAPACCI MASCARENHAS PRADO
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FERNANDO ANTONIO NOGUEIRA GALVÃO DA ROCHA
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MARIÂNGELA GAMA DE MAGALHÃES GOMES
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PAULO CESAR BUSATO
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SEBASTIAN BORGES DE ALBUQUERQUE MELLO
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Data: 9 août 2019
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The research deals with the criminal liability of the legal entity within the context that involves the establishment of rules of conduct in social life. With the premise in the preservation of the guarantor postulates, reached after a long process, the purpose of avoiding a preponderance in the valuations of criminal policy over the systematic function of constructing concepts was established. In order not to break the dogmatic principles, the analysis of the axiom societas delinquere non potest was delimited in this study. It remains to be shown that this principle no longer subsists in contemporary reality. The occurrence of economic offenses has shown an
organized irresponsibility, while growing collective awareness of the constant threats of the so- called risk society that increases the level of insecurity and demand for more effective state
regulation. The idea of freedom of action in the economy has been succumbing to the yearning for state intervention in favor of the reestablishment of market equilibrium and the realization that political power is now exercised by large economic conglomerates. Moreover, the ability of the legal entity to act with the contribution of the significant action theory pointed to greater income possibilities for the construction of a self-responsibility of the company. Thus, the thesis aims to demonstrate, inductively, that the appreciation of the meaning of the substratum of the offense to the criminal norm evidences in the perspective of communicative action an action of the legal entity as an author in economic crimes.
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23
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MATEUS BARBOSA GOMES ABREU
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ABUSE OF RELIGIOUS POWER IN BRAZILIAN ELECTION DISPUTES
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Leader : MARIO JORGE PHILOCREON DE CASTRO LIMA
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MEMBRES DE LA BANQUE :
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CLÁUDIO ANDRÉ DE SOUZA
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GABRIEL DIAS MARQUES DA CRUZ
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JAIME BARREIROS NETO
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MARIO JORGE PHILOCREON DE CASTRO LIMA
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PEDRO AUGUSTO LOPES SABINO
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Data: 9 août 2019
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The purpose of this thesis is to understand the phenomenon of religious power abuse in Brazil, considering the lack of specific regulation and the oscillation of the ratio decidendi of the jurisprudence drawn up by the Electoral Courts. The discussion gains peculiar relevance in Brazilian context, considering the high number of religions practitioners and the projection of the effects deriving from the charismatic domination exercised before the believers (who are also voters), among them, trust, loyalty, obedience and devotion to the leader, often passively accepting the overlapping of the political-electoral will of the Church over their own will. In this vein, it is proposed that the religious power abuse to be recognized as an autonomous figure of power abuse in the electoral context, since it is not confused with the other abusive modalities consubstantiated in the electoral normative. It is therefore hoped that, on the one hand, there will no longer be any doubts about the legal possibility of imposing penalties by the Courts when proven abusive religious practices and, secondly, that the necessary legislative reforms are promoted to cover not only the power religious abuse as an electoral offense, but also any kind of abusive practice - whether typical or atypical - that interferes with the electorate's freedom of choice and equal opportunities among candidates in access to elective public office. In this way, the integrity of the young Brazilian democracy will be preserved face of the unbridled abuses of power practiced in a “no rules” electoral dispute, which, often, compromise the legitimacy of the elections and, ultimately, the rupture of the democratic and republican pacts.
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24
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NATALIA PETERSEN NASCIMENTO SANTOS
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RAPE AS AN INSTRUMENT OF POWER AND THE MISTAKE OF UNCONDITIONAL PUBLIC CRIMINAL ACTION FOR SEXUAL CRIMES.
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Leader : MARIA AUXILIADORA DE ALMEIDA MINAHIM
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MEMBRES DE LA BANQUE :
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ALESSANDRA RAPACCI MASCARENHAS PRADO
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MARIA AUXILIADORA DE ALMEIDA MINAHIM
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SEBASTIAN BORGES DE ALBUQUERQUE MELLO
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PETILDA SERVA VAZQUEZ
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YURI CARNEIRO COELHO
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Data: 12 août 2019
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El delito de violación según la ley brasileña ya ha sido sometido a los tres tipos de acción penal previstos por el sistema legal antes mencionado. Inicialmente, el delito se procesó mediante un proceso penal privado, convirtiéndose en una acción penal pública condicional a la enmienda promovida por la Ley n° 12.015/09, y finalmente se convirtió en un delito penal público incondicional con la publicación de la Ley no. 13.718 /18. El problema radica en el hecho de que, en este tipo de acción, el titular de la propiedad legal simplemente no tiene poder relacionado con el enjuiciamiento del delito y todavía está vinculado obligatoriamente al enjuiciamiento penal, como medio de prueba. Así, la víctima sufre el doloroso proceso de victimización secundaria producido por las instancias formales e informales del poder, agravando aún más el estereotipo social de pasividad y vulnerabilidad construido alrededor del género femenino. Basado en la premisa de que la violación es un crimen de poder y que tal modelo de acción criminal viola la autonomía individual de la víctima, este artículo busca analizar la coherencia y corrección de dicha modificación, planteando la hipótesis de que constituye una medida. desfavorable para el reconocimiento y fortalecimiento de la autonomía femenina, además de ser un mecanismo ineficiente para combatir tales crímenes.
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AMANDA SOUZA BARBOSA
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REVIEW OF THE BASIS OF GLOBAL BIOETHICS: HUMAN RIGHTS, ALTERITY AND RELATIONSHIP BETWEEN MORAL FOREIGNERS
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Leader : MONICA NEVES AGUIAR DA SILVA
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MEMBRES DE LA BANQUE :
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ALESSANDRA RAPACCI MASCARENHAS PRADO
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ANA THEREZA MEIRELES ARAÚJO
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MARIA AUXILIADORA DE ALMEIDA MINAHIM
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MONICA NEVES AGUIAR DA SILVA
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TAYSA SCHIOCCHET
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Data: 12 août 2019
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This thesis aims to analyze the foundations of global bioethics to provide adequate environment for bioethical conflict resolution between moral strangers in an egalitarian way. The following specific objectives were established: a) to identify the main proposals named global bioethics; b) to confront the most frequent global bioethics proposal - that based on human rights, with multiculturalism; c) to propose a new basis for global bioethics to provide adequate environment for bioethical conflict resolution, especially among moral strangers. This research is exploratory and qualitative. The hermeneutic-phenomenological method was chosen as method of approach. In this way, the methodology is compatible with the basic theory - the Levinas’ phenomenology of alterity. Historical and comparative analyzes were carried out, maintaining a transdisciplinary perspective. Bibliographical and documentary research techniques were adopted. In the end, from the Levinas’ phenomenology of alterity, it was proposed a theoretical framework for global bioethics to achieve its original goal: to build consensus for human survival and to solve bioethical problems in the ecological and biomedical spheres
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26
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ANDRÉA SANTANA LEONE DE SOUZA
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PROTAGONISM AND DIGNITY OF INTERSEX CHILDREN BEFORE A PROTOCOL SEXUAL DESIGNATION BIOMEDICAL
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Leader : MONICA NEVES AGUIAR DA SILVA
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MEMBRES DE LA BANQUE :
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ANA KARINA FIGUEIRA CANGUCU CAMPINHO
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ISABEL MARIA SAMPAIO OLIVEIRA LIMA
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LEANDRO REINALDO DA CUNHA
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MONICA NEVES AGUIAR DA SILVA
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ROXANA CARDOSO BRASILEIRO BORGES
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Data: 28 nov. 2019
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Intersexuality is a biological expression of bodies that is different from the historically sealed biomedical logic that separates the body as female and male. Its most common type is Congenital Adrenal Hyperplasia (CAH), which is expressed with genital ambiguity. Resolution 1664/2003 and the Chicago Consensus of 2006 states that intersexuality is the result of an anomaly of sexual development, understood as a case of medical and social urgency, and should be accompanied by a multidisciplinary team with the participation of parents and guardians and, whenever possible, from the intersex person, to the sexual designation. The Consensus further states that patients with CAH, 46, XX are assigned to females. Thus, the present thesis aims to analyze and discuss the protagonism of intersex people before a biomedical protocol of sexual designation. The selected approach method is qualitative in nature, whose procedures are as follows: literature review; legislative review; and semi-structured interview. The interviewees were chosen to use the technique of critical cases, and from those indicated by the professionals of the genetics ambulatory, two cases were chosen: one whose gender identity is aligned with the sex that was assigned at birth; and the other whose gender identity does not align with the sex assigned at birth. These protocols maintain a binary / heteronormative logic that does not ask for the patient participation; This participation is more discussed when the patient is a minor. For the legal system, those under 16 would be absolutely incapable, and relatively incapable individuals aged between 16 and 18 years old. It is noteworthy that the Civil Code was conceived by a patrimonialist basis, disprivileging the existential discussions. In this context, emerges the importance of bioethics that has advanced in the discussion about the guarantee of existential rights, making the discussion about the capacity of children and adolescents to be more flexible, bringing concepts such as bioethical capacity and the theory of the mature of the minor. The bioethics of protection emerges as a necessary chain to ensure the empowerment of particularly vulnerable individuals such as the intersex child, avoiding irreversible damage by committing to support the development and maturity of these people. Results: from the analysis of the interviews, common categories emerge in the speeches, which are: surgery as a mandatory element; participation in decision making; the prejudice experienced socially; silence as a strategy to deal with the situation; and non-identification as intersex. In the analysis of interviewee A, the following emerged: right to name as a fundamental right; and the objectification of the patient in the name of beneficence. Conclusions: The biomedical protocol of sexual designation does not guarantee the protagonism of the intersex person at the moment that understands the importance of surgery as a better strategy for the “normalization” of the bodies. To make the protagonism of this person possible, it is necessary to postpone the surgery in cases that are not indispensable to the child's health, considering that it is an irreversible but feasible act. As for bioethical capacity, 12 years old is considered the milestone to start the construction of the decision, being possible to decide not to perform the surgery.
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27
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Raphael Rêgo Borges Ribeiro
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THE LAW OF SUCCESSIONS AND THE FEDERAL CONSTITUTION OF 1988: PROPOSALS FOR CRITICAL REVIEW OF ELEMENTS OF THE SUCCESSORY PHENOMENON IN THE LIGHT OF CIVIL-CONSTITUTIONAL METHODOLOGY
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Leader : MARIO JORGE PHILOCREON DE CASTRO LIMA
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MEMBRES DE LA BANQUE :
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ANA LUIZA MAIA NEVARES
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GISELDA MARIA FERNANDES NOVAES HIRONAKA
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LEANDRO REINALDO DA CUNHA
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MARIO JORGE PHILOCREON DE CASTRO LIMA
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ROXANA CARDOSO BRASILEIRO BORGES
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Data: 6 déc. 2019
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In this thesis, we investigated the constitutionalization of Brazilian Inheritance Law, specifically its impacts – both expected and frustrated – on ordinary legislation. Influenced by the neoconstitutionalist theory, legal scholars have recognized the expansive power of the Constitution, whose norms should shape – both formally and substantially – all other legal fields, including Private Law. In this context, Civil-Constitutional Law arises as a framework to reinterpret the traditional Civil Law to promote constitutional values – among which human dignity stands out. In this study, we used the civil-constitutional methodology to critically analyse whether the Brazilian 2002 Civil Code has effectively drafted an Inheritance Law compatible with the 1988 Federal Constitution. We observed that the fundamental right to inheritance should guide all public powers’ actions, which involves the legislator’s duty to protect succession rights; moreover, it also acts as a parameter for interpreting ordinary laws; in addition, it directly impacts private transactions as well. We noticed that the Federal Constitution establishes the following functions of inheritance rights: protection and development of human dignity; protection of the deceased’s family members; respect to collectivity’s interests (a social function of inheritance). Analysing the ordinary legislation concerning hereditary succession, we realized that the 2002 Civil Code has repeated the past instead of focusing on the future. Regarding testamentary succession, we noticed that the current legislation has not properly established qualitative nor quantitative limits to testamentary autonomy. Similarly, we observed that the testament has not been actually affected by the “repersonalization” and “depatrimonialization” processes. Besides, we saw that the 2002 Code remains anachronistic and excessively stringent concerning testamentary formalities. On the other hand, we perceived that the law only establishes one intestate succession model, which is both inflexible and abstract. We noticed that having been developed based on a specific family model, these intestate succession norms are potentially insufficient to appropriately address the needs and yearnings of different family forms; furthermore, we realized that non-heteronormative families are completely ignored by the 2002 Code. Moreover, we saw that the current intestate succession is not open to substantive equality; therefore, it is incapable of adapting itself to extraordinary circumstances, such as the successors’ special needs or atypical behaviours. Overall, we found that, with respect to inheritance matters, the Brazilian 2002 Civil Code is close to the nineteenth-century laws: it is patrimonialism-focused, individualist, voluntarist, and conservative regarding family issues; in addition, it is excessively characterized by formalisms and abstractions. For all those reasons, we argued that the currently codified Succession Law is not adequate to properly fulfill the foundations and functions which the 1988 Federal Constitution imposes to inheritance rights. We recommended a solution which encompasses, on the one hand, legal scholars and judges critically reinterpreting inheritance norms; and, on the other hand, legislators deeply reforming these laws to make them compatible with the Constitution. We particularly suggested the attribution of discretionary power to probate courts, which would allow them to find the ideal decision to each case, especially concerning: the extension of the forced succession; the power of dispensing testamentary formalities; the recognition of hereditarily relevant relationships; and the exceptional substantially-material distribution of inheritance.
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JOSÉ GOMES DE BRITTO NETO
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THE LIMITS OF STATE INTERVENTION IN THE ECONOMIC FIELD THROUGH INTERVENTIONAL CONTRIBUTIONS
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Leader : PAULO ROBERTO LYRIO PIMENTA
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MEMBRES DE LA BANQUE :
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EDVALDO PEREIRA DE BRITO
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HENRIQUE RIBEIRO CARDOSO
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LUCAS GONÇALVES DA SILVA
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PAULO ROBERTO LYRIO PIMENTA
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SAULO JOSE CASALI BAHIA
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Data: 17 déc. 2019
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The Social State emerged from drastic changes in social, political and economic relations of the twentieth century, ruled by external factors such as the first and second world wars and the consequent economic crises that brought moments of strong recession, led to a new perception hitherto prevalent economic and legal order. The social inequalities resulting from the economic crises experienced during this period gave rise to the Social State, whose most relevant legal frameworks are found in the Mexican Constitution of 1917 and German 1919 (Weimar). In Brazil, the 1934 Constitution introduces a legal order that covers the economic order in order to create mechanisms of state action to promote not only the guarantee of individual rights, but also of social and collective rights, striving for economic development and welfare. This new legal conjuncture, in the tax aspect, generates a new function to the tax, extrafiscality, where it is now used not only as a source of public revenue collection, but as an instrument to stimulate or discourage certain behaviors in taxpayers. achieve a particular economic or social purpose. Also, the tax is also used to generate public revenue for the promotion of a specific interventionist state end in a given economic sector, in order to establish public policies aimed at achieving the ends and structuring values set forth in the Constitutional Text. The Federal Constitution of 1988 brings, in its art. 149, the competence granted to the Federal Union to institute intervention contributions in the economic domain as one of the State's instruments of action in this area, with predefined purpose, to achieve economic development and social welfare. In spite of the constitutional competence attributed to the Union, the creation of the intervening contribution cannot be a way to collect endless public revenue, as it can only be linked to the constitutional purposes and within the limits imposed by the Constitutional Charter, under penalty of your disability. Its limits include understanding the insertion of the principles and rules of the tax and economic subsystems disposed in the Constitutional Text within the larger structuring values conformed as foundations and objectives of the Federative Republic of Brazil.
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RAMON ROCHA SANTOS
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CONSTITUTIONAL ONCEPT OF ISS TAXABLE SERVICE
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Leader : PAULO ROBERTO LYRIO PIMENTA
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MEMBRES DE LA BANQUE :
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DIRLEY DA CUNHA JUNIOR
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EDVALDO PEREIRA DE BRITO
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HENRIQUE RIBEIRO CARDOSO
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LUCAS GONÇALVES DA SILVA
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PAULO ROBERTO LYRIO PIMENTA
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Data: 17 déc. 2019
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This thesis aims to critically analyze the relationship between the Constitution and the complementary tax law, reflecting on the existence of a constitutional concept of service taxable by the ISS, whose content is extracted from the set of rules and principles existing in our legal system at the time of the promulgation of the Federal Constitution of 1988. Outlined the constitutional profile of the ISS, its matrix rule of tax incidence and the scope of the complementary law referred to in art. 156, III of the Federal Constitution of 1988, we seek to demonstrate that the sign “service” used by the constituent legislator contains a true concept - and not a type - that can be extracted, even implicitly, from the constitutional text, based on rules interpretation. Starting from the premise that constitutional concepts truly exist, an analysis of the municipal competence concerning the ISS and the concept of taxable service by the ISS is extracted from the constitutional text, based on a systematic analysis that takes into account the federative principles and municipal autonomy. The construction of this concept is performed from the analysis of the constitutional system, tax, permeating the three planes of language: semantic, syntactic and pragmatic. Outlined the constitutional concept of service for purposes of ISS incidence, an evolutionary analysis of the Supreme Court jurisprudence on the subject is performed.
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