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Disertaciones |
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1
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GLÁUCIO GUIMARÃES MEDEIROS
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The Federal Supreme Court and the Direct Action of Unconstitutionality n.º. 5.794/2017: a critical analysis of the breaking of the normative parameters of financial control to the detriment of tax justice.
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Líder : BASILE GEORGES CAMPOS CHRISTOPOULOS
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MIEMBROS DE LA BANCA :
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BASILE GEORGES CAMPOS CHRISTOPOULOS
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FABIO LINS DE LESSA CARVALHO
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FILIPE LOBO GOMES
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MÁRCIO OLIVEIRA ROCHA
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Data: 09-mar-2021
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Resumen Espectáculo
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The Federal Supreme Court, at the time of the final judgment of the Direct Action of Unconstitutionality No. 5.794/2017, agreed on the constitutionality of the challenged rule and decided on the optionality of union dues, then imposed by art. 578 of Law No. 13,467/2017, giving rise to numerous consequences for the union movement, among them, the one that legitimized an abrupt turn in the understandings consolidated for decades about the legal nature of union contribution, its extension, mandatory, sharing revenue, thus characterizing a major case of tax waiver.
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2
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GABRIELA BUARQUE PEREIRA SILVA
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LIABILITY, RISKS AND TECHNOLOGICAL INNOVATION: THE CHALLENGES IMPOSED BY ARTIFICIAL INTELLIGENCE
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Líder : MARCOS AUGUSTO DE ALBUQUERQUE EHRHARDT JUNIOR
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MIEMBROS DE LA BANCA :
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ANA DE OLIVEIRA FRAZÃO
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JOSE BARROS CORREIA JUNIOR
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JULIANA DE OLIVEIRA JOTA DANTAS
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MARCOS AUGUSTO DE ALBUQUERQUE EHRHARDT JUNIOR
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Data: 27-may-2021
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Resumen Espectáculo
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It aims to analyze the inflows of damages arising from artificial intelligence activity in the field of civil liability, based on the constitutional assumption of social solidarity and victim protection. Thus, the objective is to investigate the framework and classifications of civil liability regarding the repair of damages arising from mechanisms equipped with artificial intelligence, and their preventive function in the context of technological development risk, analyzing appropriate answers to situations of uncertainty management. The relevance of the approach assumes character considering the dizzying growth of artificial intelligence in all social branches, which creates the need to delimit transparency and security for the business model. In this panorama, the approach is constituted by means of deductive methodology of bibliographic review, proceeding to an analysis about the theme in the perspectives of Constitutional Law, Civil Law and Consumer Law, comprising scientific journals, books, master’s dissertations and doctoral thesis. Furthermore, the comparative method will be used, analyzing European and American legislative texts relevant to the issue of the dissertation, in order to identify devices and principles that underlie and guide the legal discipline of the issue. The main point of the dissertation connects to the historical process of redirecting the look of civil liability to the victim, in compliance with the principle of full reparation of the damage and with a focus on the general clause of risk set out in art. 927 of the Civil
Code, strengthening the commitment to fullfill the fundamental rights. The reparation may be based, depending on the specific case, on strict liability set out in consumer legislation or in the general clause of art. 927, of the Brazilian Civil Code, and in the strict liability caused by inanimated things, not constituting, in principle, the risk of developing na exclusion of the duty to indemnify. On the other hand, inter-business relationships remain disciplined by negligence liability. In this sense, it appears that civil liability for acts of artificial intelligence can, guided by the precautionary principle and in line with technological incentives, in contemporary ways, meet the demands for reparations, with the specificities of the respective legal branches in which it is located, not being necessary, at the present moment, the creation of an additional electronic personality or a new normative framework.
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3
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JESSICA ANDRADE MODESTO
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THE RIGHT TO PRIVACY IN THE INFORMATION SOCIETY IN ACCORDANCE WITH THE GENERAL LAW PROTECTION PERSONAL DATA: AN ANALYSIS OF THE (IN) EFFECTIVENESS OF LAW Nº 13.709/2018 IN BRAZIL FROM THE COMPARATIVE STUDY WITH THE GENERAL DATA PROTECTION REGULATION OF THE EUROPEAN UNION
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Líder : MARCOS AUGUSTO DE ALBUQUERQUE EHRHARDT JUNIOR
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MIEMBROS DE LA BANCA :
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MARCOS JORGE CATALAN
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JOSE BARROS CORREIA JUNIOR
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JULIANA DE OLIVEIRA JOTA DANTAS
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MARCOS AUGUSTO DE ALBUQUERQUE EHRHARDT JUNIOR
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Data: 29-jul-2021
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Resumen Espectáculo
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The right to privacy, in its informational dimension, came to be especially protected in Brazil from Law Nº. 13.709 / 2018 - General Law for the Protection of Personal Data. The present work aimed to investigate whether this law will cause changes in the behavior of data processing agents, and also whether it will be able to mitigate the risks to privacy in the information society, in order to promote effective safeguards for data subjects. For this, the deductive method was used - starting from the historical, social and cultural development of essential concepts for the study -, aided by the comparative method - from the simultaneous analysis between LGPD and GDPR -, and a theoretical, qualitative and descriptive/ prescriptive research was carried out,– with the use of national and foreign doctrine, identification of the nature of the concepts, exposition of the
theme and presentation of proposals/solutions based on European and national experience. It was concluded that the LGPD is able to successfully institute a personal data protection system aimed at preventing damage, but also ensuring repair in case they materialize. In order to lead agents to compliance, the LGPD empowers the National Data Protection Authority to monitor compliance with its provisions and apply administrative sanctions in the event of any violation. Examining the provisions and impacts of the GDPR in Europe, important subsidies were obtained for the analysis of the effectiveness of Law Nº. 13.709/2018, given the similarities between the legislations. The European experience demonstrates that the social effectiveness of the Regulation in the Member States of the European Union depends, considerably, on a strong, quick and independent action from the control institutions. In this sense, also in Brazil, the effectiveness of the LGPD will largely be subject to the action of the ANPD. In view of the territorial dimension of Brazil, its large population and a still incipient culture of privacy that prevails in the country, the National Authority may face many difficulties to raise public awareness, respond to complaints from holders, as well as guide, supervise and sanction the treatment agents. Therefore, it will be necessary for ANPD to have sufficient financial and human resources to perform its duties quickly and effectively. As a possible way to alleviate such obstacles, the National Authority may enter into collaboration agreements with other institutions, such as SENACON, to carry out its educational activities, meet the demands of holders and create mechanisms to assess compliance with the rules by controllers and operators.
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4
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ANDRÉ LUIS PARIZIO MAIA PAIVA
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Procedural agreements on the fundamental right to contest
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Líder : PEDRO HENRIQUE PEDROSA NOGUEIRA
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MIEMBROS DE LA BANCA :
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ANTONIO DO PASSO CABRAL
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BECLAUTE OLIVEIRA SILVA
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FREDERICO WILDSON DA SILVA DANTAS
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Data: 04-nov-2021
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Resumen Espectáculo
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The Constitution of the Republic of 1988 establishes the fundamental guarantees of theprocess, which make up the so-called constitutional due process, which is a condition for thelegitimacy of any exercise of the jurisdictional function of the State. On the other hand, theCode of Civil Procedure, in its art. 190, brings the possibility of the parties to negotiate aboutthe rules of the process, disciplining models of procedure or disposing of their onus, powers,duties and procedural faculties. There is, with the current CPC/2015, a general clause foratypical negotiation in the process. In this context, it becomes imperative to investigate “if”and “to what extent” the fundamental guarantees established in the Constitution can be theobject of negotiation between the parties. It is certain, however, that there will not be auniform answer to any and all fundamental procedural rights, requiring their individualdeepening. From this perspective, we will investigate the possibility of negotiating thefundamental right to the contradictory, investigating the factual support of the respectivestandard, identifying the precepts that emanate from it to, at the end of the research, identifywhich of them could be object of disposition by the parties to the process. Having establishedthe possibility of procedural negotiation of the fundamental right to the adversary, it isimperative to establish objective limits for the negotiation and, finally, to explain what wouldbe the legal regime applicable to the procedural business when signed by the parties andinvoked in a specific case
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5
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THYAGO BEZERRA SAMPAIO
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THE EXACERBATED PERFORMANCE OF THE FEDERAL EXECUTIVE CONTROL BODIES: the administrative law of fear and the crisis of inefficiency in public management
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Líder : FILIPE LOBO GOMES
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MIEMBROS DE LA BANCA :
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FABIO LINS DE LESSA CARVALHO
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GEORGE SARMENTO LINS JUNIOR
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RICARDO SCHNEIDER RODRIGUES
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Data: 17-nov-2021
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Resumen Espectáculo
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Although the literature is not abundant and in-depth on the subject, having, for the most part, articles on the subject, there is a growing and intense debate in the doctrine about the role of control bodies and entities over administrative activity.The objective of this work is to analyze and understand the structure and the exercise of the competences of the State control institutions, specifically those that deal with the performance of the public administrator of the federal Executive Branch, in order to stimulate the discussion and promote a timely reflection under the discursive formations related to the public manager's mode of action as a result of possible excesses practiced by state control agents. Throughout this study, bibliographical perspectives on the separation of powers and the paths taken to the current managerial model of public management are presented. The concepts of the fundamental right to good administration and control in the digital age are discussed and analyzed, through a systematic review, a starting point for further study of the legislation and structures that make up the control activity of the federal executive branch , then to enter into the central theme pertinent to the exacerbated performance of the control bodies and the fear on the public administrator, proposing alternatives for a better calibration of the control of the administrative activity of the State. The conclusions point out that the Public Administration and the control activity coexist in disharmony and that they need to converge their actions in a systemic interaction of intense dialogue, considering that fear is installing itself in the public manager's daily life, interfering in their decision-making practice, putting at risk the implementation of public policies and the realization of fundamental rights.
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6
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ISABELLE DE SOUZA BORDALO
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AFRO-BRAZILIAN RELIGIONS, SLAVES AND THE MASTERS: THE DISCRIMINATION OF AFRICAN RELIGIONS AND THE THEORY OF (DE) COLONIALITY IN THE DECISIONS OF THE SUPREME FEDERAL COURT.
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Líder : GEORGE SARMENTO LINS JUNIOR
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MIEMBROS DE LA BANCA :
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JULIANA DE OLIVEIRA JOTA DANTAS
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MARIA DA GRACA MARQUES GURGEL
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THULA RAFAELA DE OLIVEIRA PIRES
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Data: 22-nov-2021
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Resumen Espectáculo
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This study aims to investigate whether the theory of coloniality is the driving force behind the discrimination of afro-brazilian religions and whether there are signs that the court decisions handed down by the Supreme Court have such an idea in the field of religiosities. Through a theoretical study, using the logical-deductive method, the analysis is based on three interconnected pillars: afro-brazilian religions, discrimination and state action. In this way, using an intersectional view of Law, with the Sociology and Anthropology of Religion, there is not only a scene of the profound influence of coloniality in colonized peoples - including the religious area-, but also, equally, it is glimpsed in the jurisdictional activity of the Courts, especially in the Supreme Court, the real prospect marked by the interpretation of human rights from the perspective of coloniality and religious racism, while proposing the effective opening of spiritual expression in the secular State, in light of the decoloniality faiths.
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7
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LUIZ PHILLIPE DE OLIVEIRA GOMES MARTINS
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The prohibition of the intimate search in the workplace as a guarantee of the fundamental right to intimacy
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Líder : BECLAUTE OLIVEIRA SILVA
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MIEMBROS DE LA BANCA :
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PEDRO HENRIQUE PEDROSA NOGUEIRA
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JOSE BARROS CORREIA JUNIOR
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MARCO FÉLIX JOBIM
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Data: 24-nov-2021
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Resumen Espectáculo
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The employer's supervisory power characterizes one of the expressions of the employment power linked to the continuous monitoring of the provision of services in the work environment. Based on this prerogative, intimate search about the personnel and the personal objects of the employees are adopted to guarantee internal surveillance. The discussion on the topic of “intimate search” in the workplace took on a new shape with the paradigm set by Subsection I Specialized in Individual Disputes (SBDI I) of the Superior Labor Court (TST) when signing a legal thesis that the search procedure carried out in the personal belongings of all employees it is contained within the scope of the supervisory power when adopted in an indiscriminate manner and without physical contact. However, the aforementioned statement of the positive right concerning the intimate search, present in Art. 373-A, VI, of the Labor Relations Code (CLT) and in Law No. 13.271 / 2016, encourages reassessment by the Science of Law. The object of the dissertation is to evaluate the constitutional limits of the intimate search in the workplace as a guarantee of the fundamental right to intimacy. Methodologically, legal bibliographic research and the deductive method are adopted it. The legal analysis was carried out (1) based on the doctrine on the protection of privacy in the field of fundamental rights and in the analysis of the legal system of the country; and, (2) with respect to the deductive examination, from a major premise - the constitutional and infraconstitutional rules - to a minor premise - the specific case of the analysis of the intimate search in the workplace. In chapter one, some premises will be stipulated from the study of the constitutionalization of Labor Law; the legal effectiveness of fundamental rights in relations between individuals; and, still, of the proportionality rule in Robert Alexy's conception. Given these assumptions, in the second chapter will approach the evolution of the fundamental right to privacy; the supervisory power in the workplace in the exercise of the employer's property right; to in the end, investigate the intimate search about the person and the personal objects of the workers. In chapter three, it will examine the social function of property and the company; as well as the economic, social and environmental aspects (triple botton line), in which the figure of the worker presents itself as an important stakeholder worthy of legal protection in the dynamics of business activity. Finally, chapter four, the investigation will lead to civil liability in the face of the employer's disrespect for the company's social function when exercising abusive inspection through intimate searches, thus constituting an off-balance sheet damage. It is believed that it is possible to affirm that disproportionate searches in the person or personal objects in the workplace that violate the fundamental right to privacy represent intimate search, so that, when performed against the company's social function, it constitutes an unlawful act causing harm off-balance sheet subject to civil liability.
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8
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CAMILLE LIMA REIS
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Popular participation and new technologies in Brazilian Public Administration:
challenges and perspectives in a connected world
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Líder : FABIO LINS DE LESSA CARVALHO
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MIEMBROS DE LA BANCA :
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IRENE PATRÍCIA NOHARA
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BASILE GEORGES CAMPOS CHRISTOPOULOS
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FILIPE LOBO GOMES
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Data: 24-nov-2021
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Resumen Espectáculo
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This dissertation deals with popular participation and technological employment in the Brazilian Public Administration, outlining challenges and perspectives. In the context of a connected society, as well as the need for a more sophisticated democracy, which embraces direct forms of participation, we are located in order to unite these two unprecedented elements, which are constantly evolving. Using legal dogmatics, this study seeks to understand the phenomena that involve the law and look for ways to apply it. For this, the inductive and deductive method was used with support in national and foreign doctrine and in Brazilian legislation, as well as through qualitative and quantitative analysis. Therefore, at the first moment, we analyzed the contours of popular participation in Brazil in the context of the Democratic Rule of Law to understand how the democratic path and evolution took place. Subsequently, we began to analyze the phenomenon of technology for society and its consequences for the State, which is called upon to evolve by adhering to technologies as well. Finally, this study made it possible to deepen the connection between technology and participation: connected democracy, and to realize that with the evolution of Information and Communication Technologies, citizens are being called upon to assume a leading role in the life of power. It was then found that, given the challenges brought by technology, such as the high speed of updating that is difficult to keep up with, budget limits, the need for cultural change and the concern with the digitally excluded, the State needs even more to rely on the technological and democratic solutions to propose solutions.
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9
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MARIANA AIRES ATHAYDE
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Legal argumentation and literalness: demystifying the idea of a literal limit: an antiessentialist theoretical approach to the functions of literalness in legal discourse
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Líder : ANDREAS JOACHIM KRELL
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MIEMBROS DE LA BANCA :
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ADRUALDO DE LIMA CATAO
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GEORGE SARMENTO LINS JUNIOR
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TORQUATO DA SILVA CASTRO JÚNIOR
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Data: 24-nov-2021
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Resumen Espectáculo
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The main objective of this dissertation is to present a notion of non-metaphysical literal limit and propose a way to deal with such a conception from a system of argumentation burden. In Brazilian legal practice, part of court decisions subscribes to literality as an insurmountable limit for decision making. Some pronouncements, however, signal the possibility of overcoming it and there are even those who doctrinally question its existence. In this scenario of dispute for literality, this dissertation seeks, at first, to bring concepts from pragmatics, especially concepts by Wittgenstein, and from theories of argumentation, especially concepts by Alexy, to confirm that the literal limit is contextual, open, and contingent, but objectively existing because it is based on word usage roles. In a second moment, focusing on a necessary approximation for contemporary Law between legal security and concrete justice, elements are proposed so that the literal limit is operationalized in the legal universe as a burden of argumentation, and not as a radical block to the taking of decision. By following this path, this work concludes that the non-metaphysical literal limit must be understood as one of the most important burdens of argumentation, establishing a weight for the reasons that intend to justify a decision removed from the text in the name of concrete justice. Seen in this way, literality manages to restrict decision-making spaces without subjecting the judge to limits that prevent him from dealing with new conflicts, as claimed by the Democratic State of Law.
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10
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INGRID PAZ ESTEVAM
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Limits of the prevalence of the negotiated over the legislated in collective labor bargaining: an analysis of art. 611-A of the CLT based on the principles of prohibition of social retrogression and progressivity.
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Líder : ALESSANDRA MARCHIONI
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MIEMBROS DE LA BANCA :
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MARIA DA GRACA MARQUES GURGEL
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GABRIEL IVO
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CAROLINA PEREIRA LINS MESQUISTA
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Data: 25-nov-2021
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Resumen Espectáculo
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The trend towards flexibilization and deregulation of labor rights in times of economic crisis is nothing new. In the current neoliberal context, legislative reforms are especially perpetuated without due democratic debate, without the necessary conformation to the constitutional and international labor legal system. At this juncture, the Labor Reform was enacted (Law 13,467/2017), whose pillar consisted in the institution of the prevalence of the negotiated over the legislated with regard to rights previously guaranteed by the Consolidation of Labor Laws. The insertion of art. 611-A in the CLT granted, at first sight, freedom to the parties of collective bargaining to reduce or suppress rights guaranteed by law, basically reserving only rights expressly provided for in the Federal Constitution of 1988. The legislative modification caused severe ruptures with principles, doctrine and jurisprudence in the labor area, affecting the basic structure and rationale of this legal branch. The Labor Law has as its logical foundation the promotion of the human dignity of those who work, since the employment contract differs from the civil contract in that it has as its object the human workforce, and, as consideration, a portion that guarantees the employee's subsistence. Thus, given the imbalance of forces inherent in this type of contractual relationship, national and international legislation, doctrine and jurisprudence were built to promote equality between employer and employee, protecting the worker in the socioeconomic order through guarantees that promote the improvement of their working conditions. In this context, this research seeks to analyze the denaturation of the constitutional function of collective labor bargaining caused by Law 13.467/2017, given the national and international protection granted to this institute by the principles of progressivity and prohibition of social retrogression, enshrined in both the legal system Brazilian and within the scope of the International Labor Organization and other international diplomas. From the historical description of the formation of unionism, the work rescues the material sources on which the normative foundations of the Collective Labor Law were built, aiming to demonstrate that, despite the improvement of the social condition of the worker, it is an intrinsic function of the union , its negotiation capacity varies in space-time, according to the current social and economic situation – therefore, it cannot do without the protective principle that governs the Labor Law. From this perspective, the research describes the entire principled and normative framework derived from this protective function of the labor branch, presenting the principles of progressivity and the prohibition of retrogression as material limits to the content of collective bargaining. It presents the pyramidal and staggered structure of the labor legal system, its heteronomous and autonomous sources and the special criterion of prevalence that governs its norms, with the aim of positioning collective bargaining hierarchically below the law and reaffirming the principle of protection. The work concludes for the unconstitutionality of the hierarchical inversion in the justlabor pyramid, intended by Law 13,467/2017, in the name of a supposed autonomy of the collective will recently exalted in the jurisprudential construction of the Supreme Court.
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11
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RAÍI MORAES SAMPAIO DE PAIVA
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THE NECESSARY LINK BETWEEN INTERPRETATIVE METHODS AND THE APPLICATION OF INDETERMINATE LEGAL CONCEPTS
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Líder : ANDREAS JOACHIM KRELL
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MIEMBROS DE LA BANCA :
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GUSTAVO JUST DA COSTA E SILVA
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ADRUALDO DE LIMA CATAO
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BASILE GEORGES CAMPOS CHRISTOPOULOS
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Data: 25-nov-2021
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Resumen Espectáculo
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The reflexes of normative indeterminacy in judicial decisions do not constitute a new problem neither to legal theory nor to legal practice. Likewise, the methods of legal interpretation and application - such as subsumption, the four canons and weighting of assets - have been suggested in a long time by Brazilian dogmatics as important resources to normative application. However, based on a few conclusions of philosophy and hermeneutics’ “linguistic turn”, some of the Brazilian doctrine have been questioning the possibility of applying the methods as support to decision-making, through criticism that have been affecting legal decisions. On the other hand, a considerable portion of court practices still resort to methods of interpretation to justify their decisions, in particular in hard cases in the light of the presence of indeterminate legal concepts. Oftentimes, the resort to methods is only superficial in a culture of application marked by ad hominem arguments and interpretative skepticism. In this context, the present research aims to investigate how far the conclusions of linguistic- pragmatic turn allow to claim as necessary between the application of indeterminate legal concepts and resorting to interpretative methods. Following an organization in four discursive levels (philosophical, jusphilosophical, dogmatic, practical), the dissertation appeals to three main metaphorical figures to set a previous comprehension of its object and then entangle it: The Master, which represents legal dogmatics, the Chimera of indeterminate legal concepts and the Iceberg of
interpretative methods. These figures are analyzed under two main dimensions underlined by the linguistic turn: hermeneutic (Heidegger) and pragmatic (Wittgenstein). After making concessions resulting from partial falsification of its premises, this work concludes that the investigated methods have a necessary relation to filling in concepts insofar they strengthen transparency, comprehension and control of court judgements.
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12
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EDUARDO HENRIQUE COSTA
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Para a versão final
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Líder : JULIANA DE OLIVEIRA JOTA DANTAS
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MIEMBROS DE LA BANCA :
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FABIOLA ALBUQUERQUE LOBO
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FILIPE LOBO GOMES
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MARCOS AUGUSTO DE ALBUQUERQUE EHRHARDT JUNIOR
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Data: 25-nov-2021
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Resumen Espectáculo
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Para a versão final
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13
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CARLOS DAVID FRANCA SANTOS
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The performance of the State Public Ministry of Alagoas aimed at protecting the transindividual interests: an analysis of the public civil actions filed, the terms of conduct adjustment entered into and recommendations issued in 2016 to 2019 in the city of Maceio.
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Líder : ADRUALDO DE LIMA CATAO
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MIEMBROS DE LA BANCA :
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GEORGE SARMENTO LINS JUNIOR
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MÁRCIO OLIVEIRA ROCHA
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OLGA JUBERT GOUVEIA KRELL
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Data: 26-nov-2021
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Resumen Espectáculo
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This paper intends to analyze whether the performance of the State Public Ministry of Alagoas, with regard to trans-individual interests, considered the instruments of public civil action, the conduct adjustment term and the recommendation, in the years 2016 to 2019, in the city of Maceió, was in line with the contours of access to justice. To achieve this purpose, a bibliographical research will first be carried out on the role of Parquet in safeguarding the interests mentioned; as well as about the aforementioned instruments and about the dictates of access to justice; on the other hand, with the objective of answering the research problem, an empirical investigation will be carried out, based on the data of the instruments handled by the mentioned institution in the period defined for this investigation.
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14
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EWERTON GABRIEL PROTAZIO DE OLIVEIRA
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Para versão final.
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Líder : FREDERICO WILDSON DA SILVA DANTAS
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MIEMBROS DE LA BANCA :
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MARCELO ABELHA RODRIGUES
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BECLAUTE OLIVEIRA SILVA
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PEDRO HENRIQUE PEDROSA NOGUEIRA
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Data: 26-nov-2021
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Resumen Espectáculo
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Para versão final.
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15
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CARLOS HENRIQUE GOMES DA SILVA
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x
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Líder : ADRUALDO DE LIMA CATAO
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MIEMBROS DE LA BANCA :
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TERENCE TRENNEPOHL
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ANDREAS JOACHIM KRELL
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JOSE BARROS CORREIA JUNIOR
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Data: 26-nov-2021
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Resumen Espectáculo
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x
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16
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NATALIE CRISTYNE DE SANTANA BARBOSA FARIAS
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FROM THE COLLECTING STATE TO THE GUARANTEE STATE
From the recovery of active debt credits to the realization of fundamental rights
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Líder : GABRIEL IVO
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MIEMBROS DE LA BANCA :
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BASILE GEORGES CAMPOS CHRISTOPOULOS
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BECLAUTE OLIVEIRA SILVA
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BRUNO EMANUEL TAVARES DE MOURA
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Data: 26-nov-2021
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Resumen Espectáculo
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The Brazilian State's mission is to promote social well-being, based on the supremacy of the public interest, so that its citizens may live in harmony. The basis of this harmony arises from the weighing of rights and duties, which must exist on the part of both citizens and the State. The duality of Rights and Duties is a dilemma that governs several social and legal relations. Based on this, the present research studies the correlation between the realization of fundamental rights and the duty to pay taxes or the duty to contribute, so that these rights can take effect. In view of this, the present work aims to analyze the efficiency and effectiveness of Tax Enforcement and other non-judicial means of recovering credits registered in Active Debt, credits that can be used for the realization of fundamental rights of the citizen, thus composing the cycle of Rights and Duties of the State and citizen relationship. Surrounding this scenario that the present research looks at, analyzing possible flaws in the procedures of tax enforcement and studying the feasibility of the means of lessening of judicialization of Active Debt collection, together with the analysis of data collected by public agencies. To this end, the section continues with the introduction, bringing a doctrinal and constitutional basis to the verse on Brazilian Federalism and the fundamental rights and duties of citizens. In the following section, it studies the Active Debt, and some financial-tax law institutes. To conclude, section 4 deals with the study about the means of lessening of judicialization of Active Debt collection, as possibilities of more efficient recovery of credits registered in Active Debt
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17
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JULIO CAIO CESAR RODRIGUES VASCONCELOS SOBRINHO
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THE PUBLIC CONSORTIUM AS AN INSTRUMENT FOR THE IMPROVEMENT OF MUNICIPAL ACCOUNTS: a study involving the Alagoas context from the municipal financial dependence on intergovernmental transfers
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Líder : BASILE GEORGES CAMPOS CHRISTOPOULOS
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MIEMBROS DE LA BANCA :
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GABRIEL IVO
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FABIO LINS DE LESSA CARVALHO
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LUCIANA GRASSANO DE GOUVÊA MÉLO
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Data: 29-nov-2021
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Resumen Espectáculo
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Municipal financial autonomy is the basis of all other autonomies. The 1988 Federal Constitution elevated the municipality to the level of federative entity on an equal footing with the Member States and the Union. However, part of the Brazilian doctrine disputes whether there was in fact an end to the hierarchy between the units of the federation. The lack of own resources, combined with financial dependence on intergovernmental transfers for the fulfillment of constitutional obligations, opens the discussion about Brazilian fiscal federalism and the role of municipalities in this model. Thus, the theme was delimited, in the present work, to the Alagoan context, that is, the financial dependence of the Alagoas municipalities in relation to intergovernmental transfers, presenting the intermunicipal public consortia as a cooperation instrument that can help the municipalities to overcome chronic subordination. these resources. Through a historical-legal study of federal and state constitutional rules, as well as infra-constitutional rules, it seeks to understand how municipal financial autonomy, verifying the socioeconomic reality of Alagoas, the influence it has on municipal finances and what are the difficulties for the administration in increasing of its revenues, proposing in the end the creation of consortia that help in the municipal tax management. To carry out the research, a methodology was used based on the legal, economic and geographic literature on the topic. In addition, research was carried out by official bodies - federal and state - or linked to the municipalities, in order to subsidize the theses raised about the topic. The work aims to add to the context of Alagoas the study on the financial reality of state municipalities and consortium management.
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18
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DANYELLE RODRIGUES DE MELO NUNES
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DELIMITATION OF TAX LIABILITY PROVIDED FOR IN ITEM III OF ARTICLE 135 OF THE NATIONAL TAX CODE: THE CONSTRUCTION OF THE MATRIX RULE OF TAX LIABILITY OF THE ADMINISTRATOR IN THE CONTEMPORARY CONTEXT OF CORPORATE GOVERNANCE
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Líder : GABRIEL IVO
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MIEMBROS DE LA BANCA :
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BECLAUTE OLIVEIRA SILVA
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GEILSON SALOMAO LEITE
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BASILE GEORGES CAMPOS CHRISTOPOULOS
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Data: 30-nov-2021
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Resumen Espectáculo
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The National Tax Code, in its article 135, item III, determines that the directors, managers or representatives of legal entities governed by private law are personally responsible for the credits corresponding to tax obligations resulting from acts committed with excess of powers, violation of law, social contract or statutes. On one hand, the text of this legal act operates as an interpretative vector and gives the guidelines about the identification of the subjects, the kind of responsibility that falls to them and the object for which they are responsible. On the other hand, the corresponding legal norm of tax liability is constructed from the analysis of other textual elements,and also of non-textual elements so that it can be applied to the specific case and resolve the conflicts of interest inherent to the development of tax legal relationships. Although the discussions on this mechanism relate to the last thirty years of jurisprudence in the High Court of Justice and it is important to recognize that there have been many developments, there are still many irregularities in its application. The controversies surrounding the theme of tax liability of the administrator have demanded an analysis that goes far beyond the text of the National Tax Code, in its article 135, item III, and reaches the new rules on business management. In this context, it is questioned: how to interpret the matrix rule of tax liability of the administrator in the contemporary context of corporate governance? The hypothesis is that the material criterion of its antecedent goes beyond the practice of acts with excess of powers, violation of the law, social contract or statutes that result in tax obligations, and also reaches those acts that do not result in tax obligations, simply that they are associated with it, as those practiced with the purpose of preventing, delaying, hindering, modifying or excluding the matrix rule of tax incidence and the payment of the respective tax credit. Therefore, its material criterion is directly linked to the absence of tax compliance and to the practice of tax corruptive acts. In addition, its personal criterion is composed of two taxable persons, the administered legal entity, as a taxpayer, and the natural person of the administrator, as the person responsible, whose link between them is one of subsidiarity, what meets the tax interest inherent to the Fiscal State model and does not burden excessively the responsible. The objective of the research is to delimit the tax liability provided for in the National Tax Code, in its article 135, item III, by analyzing the legitimacy of the text of this legal act in order to obtain the improvement of the legal norm of tax liability of the administrator in the contemporary context of corporate governance. The theoretical research was developed with a deductive methodology, under the qualitative method, from a bibliographic and empirical document analysis, examining the legislation, especially the Federal Constitution of 1988, the National Tax Code of 1966, the Civil Code of 2002, the Law on Economic Freedom (Law nº 13,874/2019), the Law on Financial Law (Law nº 4,320/1964), the Law of Society for Actions (Law nº 6,404/1976) and the Anti-corruption Law (Law nº 12,846/2013); the doctrine, based on the assumptions established by Paulo de Barros Carvalho, of the aspects raised by Luciana Grassano de Gouvêa Mélo and the thesis developed by Daniel Monteiro Peixoto; and the jurisprudence of the High Court of Justice, complemented by the investigation of concrete cases appreciated by the Administrative Council of Fiscal Resources. At the end of the research, the hypothesis was confirmed and improved by the conclusion on the need to reform the legal text, in order to reduce the margin of misinterpretations in the application of the legal norm of tax liability of the administrator.
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19
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CARLOS ADOLFO CARVALHAL MALAQUIAS
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BETWEEN DRUG DEALING AND MURDER: A STUDY ON THE (IN)EFFICIENCY OF THE CRIMINAL POLICY TO COMBAT DRUGS IN MACEIÓ BASED ON THE ANALYSIS OF EMPIRICAL DATA ON LETHAL VIOLENCE
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Líder : HUGO LEONARDO RODRIGUES SANTOS
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MIEMBROS DE LA BANCA :
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ELAINE CRISTINA PIMENTEL COSTA
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EMERSON OLIVEIRA DO NASCIMENTO
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VERÔNICA TEIXEIRA MARQUES
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Data: 02-dic-2021
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Resumen Espectáculo
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Over the past few decades, Brazilian society has seen a rapid expansion in homicide rates in almost all regions of the country. Among all locations, the state of Alagoas stood out negatively, as it occupied the top of the ranking of lethal violence for 9 years – from 2006 to 2014, in proportional terms. The level reached by Alagoas as one of the states where the most homicides occur in the country and the non-mandatory university internship developed in one of the capital's jury prosecutors during the years 2014 to 2016, where there was the opportunity to analyze investigations and criminal proceedings involving , mostly completed and attempted murders, motivated people to try to understand the causes of this violent and lethal crime, which affects more directly the marginal strata of society and, since that period, has shown itself to be linked to the illegal drug trade. Based on this primary perception, we chose to divide this work into three parts. In the first chapter, we brought the specialized literature on the topic of drugs, in order to address criminological, political-criminal and legal issues, in which the issue of drug prohibitionism and its effects on selected subjects was highlighted, and then , the very power of informal control of drug trafficking. In the second and third chapters we present the result of the empirical research developed and derived from the investigation of electronic lawsuits - which include completed police inquiries -, judged by the Jury Court of the three judicial units - 7th, 8th and 9th courts -, in the year 2019, competent to prosecute and judge crimes against life. There, we present the data produced on an eminently quantitative basis, through graphs, tables and figures, in order to identify whether the crimes of homicide committed are related to drug trafficking and how they are linked. In the third, which was not available at that time - qualification -, we intend to work especially with qualitative data, through the reports of those involved in the criminal action, as well as witnesses and deponents. The result achieved and presented so far proposes that more of the half of the murders against life tried by the three judicial units mentioned had, in some way, to do with the trade – and consumption – of drugs. Furthermore, combining the present with other studies with a similar perspective, the hypothesis of a problem of increased severity can be suggested.
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20
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NATALIA COSTA TENORIO FIREMAN
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Leave to Care: the Principle of Responsible Parenting from a Civil-Constitucional Perspective and its Redress by Corporate Social Responsability
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Líder : JOSE BARROS CORREIA JUNIOR
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MIEMBROS DE LA BANCA :
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Gustavo Henrique Baptista Andrade
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JULIANA DE OLIVEIRA JOTA DANTAS
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MARCOS AUGUSTO DE ALBUQUERQUE EHRHARDT JUNIOR
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Data: 03-dic-2021
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Resumen Espectáculo
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It aims to analyze the juridical-philosophical value of care for the existence and free development of the human personality in parent-child relationships. Based on a principle related interpretation of the main section of art. 227 and art. 226, § 5, both of the Federal Constitution, and of art. 22 of Law 8069/90, a hermeneutic decomposition of care in two dimensions was performed based on the civil-constitutional methodology. In the first, it was recognized as a right-duty held by children and assigned to parents, and in the second, as a right to care held by parents. The research also addressed the jurisprudential disagreement regarding the concept of the right to care expressed in judgments of the Superior Court of Justice in Special Appeals (REsp) Nos. 1.579.021/RS, 1.887.697/RJ and 1.159.242/SP, as well as in the understanding of the Supreme Court observed in Extraordinary Appeal (RE) No. 898060-SC, and its link to the right to family coexistence. Having verified the correlation of the right to care with responsible parenthood, the principle was also examined in a deeper way, proving to be structured in two freedoms: the fundamental right to family planning and the fundamental right to care for the offspring. Through a historical-comparative study of child protection and maternity and paternity protection in the Brazilian legal system and in international declarations, with a time frame starting in the beginning of the 20th century, which even today denounce traditionally anti-democratic behavior in families. It was observed that in the current state of the art, they also reinforce supposed gender roles besides being unfit to accommodate all family arrangements, whether by biological or socio-affective bonds, to the detriment of the social function of families in promoting the dignity of all its members and the search for fully employment. From this perspective, the approach is constituted by means of a deductive methodology of bibliographic review, whose analysis of the theme was emphasized in Constitutional Law and Civil Law, and, to a lesser extent, in the panorama of Labor Law, Social Security Law, and Business Law, comprising the study of scientific journals, specific works, reports, and international research, in addition to master's and doctoral theses. Furthermore, the construction was based on the comparative method, analyzing European, American, Indian, and New Zealand legislative texts that are relevant to the thesis' problematic, with the purpose of identifying the provisions and principles that ground and guide the legal discipline of the issue. Finally, after analyzing the proposals for legislative changes aimed at complying with art. 7, XIX, of the FC, solutions were found in comparative law. The research also has a propositional nature based on stimulating the participation of other social actors, the companies, based on good practices of Corporate Social Responsibility, supported by the Theory of Stakeholders, to safeguard the right to care in the exercise of responsible parenthood.
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21
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NATHÁLIA MARIA WANDERLEY CAVALCANTE
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FOR A HISTORY OF WOMEN: AN ANALYSIS OF THE IMPACT OF LAW 11.343/06 ON FEMALE INCARCERATION IN THE STATE OF ALAGOA
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Líder : ELAINE CRISTINA PIMENTEL COSTA
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MIEMBROS DE LA BANCA :
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HUGO LEONARDO RODRIGUES SANTOS
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OLGA JUBERT GOUVEIA KRELL
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LUCIANA BOITEUX DE FIGUEIREDO RODRIGUES
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Data: 03-dic-2021
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Resumen Espectáculo
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Based on feminist theoretical studies about gender oppressions, and within an intersectional and historical perspective, through literature review, document analysis - supported by the method of content analysis, according to what Bardin proposes: pre-analysis, exploration of the material / treatment of the results obtained and interpretation - and interviews, this research aimed to observe the incarceration of women in the state of Alagoas. From the understanding of the causes that would have altered the dynamics of the incarceration of women in a substantial way and of causes closer to the present moment and that also produce an impact, through a perspective of analysis committed to a history of the present. The periods 1913 to 1921 and 2005 to 2019 were highlighted, and the impact of Law 11.343/06 was analyzed in this context. The study comprised both the observation of the evolution of the spaces destined to custody women, as well as their relations with crime. It was possible to verify that the forms of control over the female body are always updated, as society develops, both in the informal sphere, in the home or outside it, and in the formal one, through the criminal justice system. If before they were incarcerated for disorder or insanity, today involvement in trafficking takes on the selective role that makes use of oppressions and vulnerabilities such as gender, race, and class to segregate and reaffirm the condition of being on the margins. The result is a mass of young and black women, as well low levels of education, mothers, who go through the police, receive notations on their criminal records and yet another stigma to carry after prison. It was possible to perceive that the Drug Law is a reflection of a tendency to greater punitive rigor after the redemocratization, which was pointed out, in the study, as a proximate cause to the massive incarceration, especially of women. Such cause is reflected not only in the Drug Law, but in a set of laws that greatly impact this incarceration. Moreover, it was also possible to observe that authoritarianism, in the psychological-social and ideological latent modalities, pointed out as a background cause, also impacts this scenario of female incarceration.
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22
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THIAGO PINHEIRO
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FRAGMENTS OF A RESTORATION JUSTICE IN THE JUDICIAL POWER: case study in the 4th Court of Domestic and Family Violence against Women in Maceió/AL
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Líder : ELAINE CRISTINA PIMENTEL COSTA
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MIEMBROS DE LA BANCA :
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ALBERTO JORGE CORREIA DE BARROS LIMA
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SORAIA DA ROSA MENDES
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WELTON ROBERTO
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Data: 06-dic-2021
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Resumen Espectáculo
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The research consisted of a case study on the 4th Court of Domestic and Family Violence Against Women in the capital/AL, the first judicial unit in Alagoas, and the implementation of a Restorative Justice program. At first, the referential theoretical bases linked to Restorative Justice are defined, based on the work of Howard Zehr. From this, the research points to historical, criminological and critical aspects related to the Maria da Penha Law. Possible obstacles exist in the relationship between restorative practices, in the context of domestic violence, and their management by the Judiciary. Through field research, of a qualitative and ethnographic nature, the history of the 4th Court, the state legislation and jurisdictional jurisdiction is presented. The methodology used for data collection was the semi-structured interview, which allowed us to understand the dynamics and procedures of the subjects responsible for Restorative Justice practices in the environment of the 4th JVDFMC. The hypothesis is that practices advertised as restorative and administered by the Judiciary, have normative obstacles and some distortions of theoretical assumptions that do not allow to fit, yet, within a restorative justice.
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23
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ALEXANDRE CESAR DOS SANTOS
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Criminal defensive investigation: Fundamental right for proof production
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Líder : WELTON ROBERTO
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MIEMBROS DE LA BANCA :
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ROSMAR ANTONNI RODRIGUES CAVALCANTI DE ALENCAR
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HUGO LEONARDO RODRIGUES SANTOS
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ANDRÉ ROCHA SAMPAIO
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Data: 06-dic-2021
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Resumen Espectáculo
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This dissertation addresses the subject of defensive criminal investigation as a right at the disposal of the technical defense for the direct production of evidence in the course of criminal prosecution for a model of fair criminal proceedings. Based on this premise, in order to contextualize the theme, research permeates the study of the legal norm, between rules and principles, with the purpose of removing the principle of parity of arms in criminal proceedings, starting with art.5, §2 of the Constitution Federal, which is a constitutional opening clause rule. The study highlights the contradictory and the broad defense in the police inquiry, with the proposals of contrary and favorable authors, in a doctrinal analysis. The research uses the Theory of Penal Guarantee which supports, among its axioms, the right to proof, which constitutes the fundamental right of the accused, which is the objective of the defensive criminal investigation. On the other hand, the expansive and punitive criminal policy of criminal law has suppressed the constitutional and procedural penalties of the accused to give the false impression of speed and efficiency, as a response to the criminal prosecution system, which degenerates the basic principles of modern criminal law. . The research methodology used in the study is bibliographic and documentary that deal with the topic, as well as a field research with lawyers from Alagoas who are active in the criminal field. The study also presents a dogmatic, theoretical and practical overview of the evidence in criminal proceedings. In addition, it makes a brief study in the North American and Italian legal systems on defensive criminal investigation. The study presents the limiting aspects and the possibilities for carrying out defensive criminal investigation and its reflexes in criminal prosecution, as well as exposing doctrinal criticisms to the validity of the evidence produced directly by the defense. In this perspective, the research seeks to demonstrate that there is a need for legislative changes in the legal system to carry out defensive criminal investigation, as a criminal policy measure, with the purpose of being an essential tool to the right of defense, which will guarantee the fundamental right to proof at par of arms.
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24
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IGOR FRANCO PEREIRA DOS SANTOS
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POLITICAL RIGHTS IN THE LIGHT OF INTERPRETATION METHODS:
THE PROBLEM OF THE EXTENSION OF REFLEX INELIGIBILITY
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Líder : GEORGE SARMENTO LINS JUNIOR
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MIEMBROS DE LA BANCA :
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MARCELO WEICK POGLIESE
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ADRUALDO DE LIMA CATAO
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ANDREAS JOACHIM KRELL
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Data: 07-dic-2021
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Resumen Espectáculo
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The research analyzes, with the help of interpretation methods, the extent of reflex ineligibility provided for in art. 14, § 7, of the CRFB/88, in particular, what is the scope of the expression "in the territory of jurisdiction of the holder" contained in the article.
It is demonstrated throughout the research how the perpetuation of family groups can offend representative principles of democracy such as republican, equality and freedom. Political-administrative changes that can expand the jurisdiction space of the holder of an elective mandate are also highlighted.
Data collection, comparative law study, and analysis of historical documents were carried out, which demonstrate that reflex ineligibility should apply to prohibit the candidacies of relatives of the holder of the executive power who have administrative political competence or influence in the same territory
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25
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JOAO PEDRO VALENTIM BASTOS
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The prominence of science and technology institutions in the national scenario of patent applications filed by residentes, given the functional and constitutional understanding of patent rights
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Líder : QUERINO MALLMANN
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MIEMBROS DE LA BANCA :
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CARLA EUGÊNIA CALDAS BARROS
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FREDERICO WILDSON DA SILVA DANTAS
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GEORGE SARMENTO LINS JUNIOR
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Data: 09-dic-2021
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Resumen Espectáculo
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In a broad sense, this study adresses the subject of intellectual property, which traditionally comprises two major fields of rights: copyright and industrial property. In a more restricted sense, the research will focus on the industrial property of patente rights and, more specifically, on the prominence of science and technology institutions (ICT) in the filling of patente applications with the National Institute of Industrial Property (INPI), notably public universities. The text will advance through four sections, using the deductive-inductive method for a bibliographic, legislative and documentar analysis with a descriptive objective. The numbers were searched in the database and documents made available by the INPI and in the UFAL and NIT/UFAL websites, as well as of any Other universities occasionally considered during the research. The theme combines subjects marked by interdisciplinarity in the literature, but the proposed analysis is essentially legal and not interdisciplinar. In other words, studies already developed and published in other areas were considered only for complementary and clarifying purposes. In sequence, we sought to extract useful contibutions from historical and doctrinal understandings on the structure of the patente legal institute in the first and second sections of the work, advancing in the next section to a constitutional and functional understanding of the material contente of this right, from the methodology for legal interpretation of the constitutionalization of private law. Finally, the fourth section dealt with the evolutionary and institutional context of science, technology and innovation, with the purpose of confronting the developed understandings and, finally, concluding on the connection between the subjects covered and the pertinence, in a view of the constitutional and functional interpretation of the patent law, of the particular context of the prominence of science and technology institutions (ICT) in the filling of patent applications by Brazilian residents. Initially, the premise adopted was that patente rights are legal artificialities consisting of exclusives for the economic exploitation of technologies that can be determined by legal technical requirements. These exclusives are assumed to be production goods in the economic logic of the Market enshrined in the Brazilian constitutional system. Therefore, given the system in which they exist and are valid, these rights only assume functionality within the productive envirionment. In this way, the general objective arises to understand the connection, congruence and pertinence in the prominence achieved within this scenario by academic institutions historically focused on higher education and basic research, whose agenda and gears would not, in principle, be in step with the agenda and gears of industry and the Market. Seen from another angle, the objective is to undestand the relationship between patente law and the fields of Science, technology and innovation in the Brazilian regulatory context.
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26
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JÉSSICA ALESSANDRA ARAÚJO FERREIRA LEÃO
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CRIMINOLOGICAL EXAMINATIONS IN REGIME PROGRESSION: BETWEEN THE PARADIGM OF POSITIVE SPECIAL PREVENTION OF PUNISHMENT AND A NEW EXPECTATION FOR BRAZILIAN CRIMINAL EXECUTION
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Líder : ALBERTO JORGE CORREIA DE BARROS LIMA
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MIEMBROS DE LA BANCA :
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ANDRÉ RIBEIRO GIAMBERARDINO
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ELAINE CRISTINA PIMENTEL COSTA
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HUGO LEONARDO RODRIGUES SANTOS
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Data: 13-dic-2021
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Resumen Espectáculo
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The criminological examinations has been questioned by many fronts of actions since its incorporation into the Brazilian legal system, which became even more energetic after the exclusion of the possibility of its utilization for regime progression, promoted by the law 10.792/2003. However, the Superior Courts consolidated the understanding that magistrates may request the drafting of the instrument in occasions they perceive it necessary, which is the reason why the practice continue to happen according to the position of each judge. Moreover, different bills seek to establish the exam for all regime progression, mainly PLS 499/2015, whose progression is more advanced. Therefore, the questioning arises: is the affirmation of the use of criminological examinations to measure the subjective requirement in the progression of the regime sufficient to justify its admissibility? Thus, the studies presents part of the hypothesis in which the practice is compromised by two reasons: 1) the conception of positive special prevention of punishment is not supported by the Federal Constitution of 1988; and 2) the criminological exam can’t assure to the Judiciary if the convict will or will not relapse. Along these lines, using qualitative research, under the deductive method, the dissertation is built through the concatenation of a bibliographic leaning, using national and foreign theoretical references on theories of justification of punishment and reflections resulting from the Clinical Criminology of orientation criticism, and an empirical bias, with field observation carried out from the experience of the State of Alagoas. In the end, it is concluded that the use of the criminological examination for the purposes of regime progression, in addition to confronting constitutional precepts, is sterile, requiring commitment and resources (human and material) that could be directed towards the effective minimization of the desocialization promoted on the individual by the imprisonment.
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27
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LUCAS DE BARROS PINO LIMA
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Awarded collaboration and (in) sufficiency of evidence
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Líder : ROSMAR ANTONNI RODRIGUES CAVALCANTI DE ALENCAR
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MIEMBROS DE LA BANCA :
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ALBERTO JORGE CORREIA DE BARROS LIMA
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ANDRÉ ROCHA SAMPAIO
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WELTON ROBERTO
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Data: 13-dic-2021
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Resumen Espectáculo
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The dissertation has the main objective to demonstrate the low probatory value that possess the testimonys of award-winning collaboration (plea bargaining) in the criminal proceedings, since this “means of obtaining evidence” is still utilized as argument of several decisions against the constitutional guarantee system. For such, will make a proposition that aims to put the criminal procedural nullity system at the core to the righteous comprehension of the institute, specifying the kinds of vices or juridic flaws that may arise in all stages of conclusion of the agreement, notably when it has disproportional value. Imposing as juridic consequence the absolute null or inexistence, depending on wich unconformity of the act refers to an essential or structural element, with the demonstration of normative calculus to help reasoning the criminal decisions. To achieve such objectives, it will be made qualitative research looking judged cases from the last 5 (five) years about the subject on the superior courts, with focus on the legislative change introduced by the §16º of the article 4º from the brazilian law 12.850/2013, as well as the most recent studys of the doctrine about the institute of the agreement.
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28
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MARIA EUGÊNIA BARREIROS DE MELLO
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TRANSNATIONAL INSOLVENCY IN LAW N° 11.101 / 05: a study from the perspective of Brazilian national sovereignty and international cooperation
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Líder : JOSE BARROS CORREIA JUNIOR
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MIEMBROS DE LA BANCA :
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BECLAUTE OLIVEIRA SILVA
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QUERINO MALLMANN
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MÁRCIO OLIVEIRA ROCHA
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Data: 14-dic-2021
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Resumen Espectáculo
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Transnational insolvency, that is, the recovery of companies and bankruptcy, involving creditors, assets and debtors who simultaneously occupy two or more international States, with their own jurisdictions and regulations, only became regulated in Brazil in December 2020, with the inclusion of Chapter VI-A in Law No. 11.101/05. In a society made up of global markets, with connections that transcend borders, the need to implement measures of international legal cooperation, which enable communication and assistance between jurisdictions of different nations, is necessary for the economic and social development of nations. Therefore, through Law No. 14.112/2020, the Brazilian legislation was updated, which incorporated the Model Law of UNCITRAL into its legal order. The maintenance of the previous system, in a legal context without any provision for this type of insolvency, would remove from interested parties the guarantee that the process of transnational company recovery or bankruptcy would be based on efficiency and fairness, especially for foreign parties. Brazilian legislation, it can be said right now, has been updated. Now, given the recent incorporation pointed out, the question is: does the adoption of the practice of international legal cooperation, through the recognition of foreign insolvency proceedings, represent a risk to the Brazilian national sovereignty, constitutionally established? In this context, the research seeks a better understanding of the theme, with the establishment of basic concepts and elementary principles related to the theme. By looking into the types of transnational insolvency systems and a brief historical foreshortening, passing through the North American and European systems until reaching the Brazilian one, it was possible to map how the theme evolved and gained relevance in the current social and economic context worldwide. Finally, the specific analysis of the newly included legal text and the practical and procedural elements necessary for the application of the law, prove to be relevant for all operators of this new action. When considering the analyzed factors, it is concluded that, for the benefit of Brazil's economic development, national sovereignty will have to be restricted, even if minimally, through the relation of national jurisdiction. From a macro perspective, the solution to the problem actually consists of maintaining the problem itself: one must always be aware of the way in which national sovereignty has been considered in actions to recognize foreign procedures, in eternal vigilance about the limits drawn and its transcendence. In specific and individual cases, each with its peculiarities, compliance with the UNCITRAL Interpretation Guide, the principles governing transnational insolvency, the constant qualification of its operators, among others, can be allied in safeguarding sovereignty.
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