DISSERTAÇÃO DE MESTRADO - PROGRAMA DE PÓS-GRADUAÇÃO EM DIREITO E INSTITUIÇÕES DO SISTEMA DE JUSTIÇA - PPGDIR
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Item AÇÃO COMUNICATIVA E PARTICIPAÇÃO POPULAR NA FORMAÇÃO E APERFEIÇOAMENTO DE POLÍTICAS PÚBLICAS DE INTERESSES SOCIAIS: uma proposta para a efetividade da participação popular, a partir da atuação do Ministério Público(Universidade Federal do Maranhão, 2017-04-27) ALVES, José Márcio Maia; MATOS, Nelson Juliano Cardoso; 433462603-30; http://lattes.cnpq.br/1109320246353904This work aims to investigate the possibility of institutions witch have responsibility to defend social interests to exercise a mediating role between the political system and civil society in the cycle of formation or improvement of public policies. As an institution of this nature, the Prosecutor's Office will be highlighted in the research from a resolutive erspective of its attributions, in order to investigate whether it is possible to act as a promoter and coordinator of the public sphere in arenas constituted by the institution itself or by others that have, in their functions, the task of defending social interests. The assumption of this work is based on the overcoming of the consciousness paradigm by the language paradigm and it has the communicative action like the tool to reach satisfactory levels of effectiveness of popular participation. The theoretical reference of the work is the Jürgen Habermas’ perception about deliberative democracy, especially based on the theory of communicative action. The research will be part bibliographical, which will be added to a field research to evaluate cuts of some projects of the Prosecutor's Office of Maranhão. First of all, aspects of the constitution of the contemporary and intersubjective public sphere will be approached in which actors that make up a material political representation of society and its interest groups interact between themselves, giving importance to the role of local associativism, new social movements and their networks inside of the process of formation and improvement of public policies of social interests. The text will deal with the phenomenon of popular participation in the face of philosophical paradigms and emphasize the necessary attention with the modalities of speech acts that hatch in the public sphere, so that the results of communicative action are not misrepresented, in order to ensure that collective deliberations in the public spaces of discussion obey the criteria of a democratic proceduralism that intend itself adequated according the Habermas' theory. Establishing the bases for the affirmation of deliberative democracy based on communicative action, reasons will be exposed to believe that the Prosecutor's Office, as an institution dedicated to defending social interests and holding horizontal accountability power, can exercise an important role in mediation between interests of civil society and the administrative system, including the creation of a forum within its institutional functions where the bases of communicative action can be guaranteed and coordinated by its members. The text will also address a way of assessing the effectiveness of the influence and normativity of popular participation before the political system in the cycle of public policy formation. An ideal conformation of the relationship between society and the system will be suggested, so that to guarantee administrative responsiveness between what the former wishes and what the latter offers as social welfare. Some stabilization factors of this ideal conformation will be suggested, which can be activated by the Prosecutor’s Office service. In this sense, the work will make a content analysis in two project cutbacks supported by the Prosecutor’s Office of the State of Maranhão to demonstrate how these stabilizing factors should be promoted and what their limits are. This analysis will be carried out from the data collection of the Prosecutor's Office with the purpose of analyzing the processes in which it will be verified if the means used by the Institution have achieved the goals set forth in the constitution of the cutbacks of the respective projects. The bibliographical research on the theoretical reference of the work and the documentary analysis of data collected at the Prosecutor’s Office of the State of Maranhão will be used as techniques.Item Administração pública e a arbitragem. Apreciação acerca da efetividade da referida técnica: estudo comparado entre o Estado do Maranhão e os Estados de São Paulo e Minas Gerais.(Universidade Federal do Maranhão, 2019-07-05) FALCÃO, Aileen Raphysa Sauaia; BONATO, Giovanni; 017863683-58; http://lattes.cnpq.br/7335452618377036; BONATO, Giovanni; 017863683-58; http://lattes.cnpq.br/7335452618377036; ZUFELATO, Camilo; http://lattes.cnpq.br/7335452618377036; RAMOS NETO, Newton Pereira; http://lattes.cnpq.br/2399244462327090The present dissertation proposes to draw a comparative study on Arbitration, an appropriate means of dispute resolution, in the cases involving Public Administration in the States of Minas Gerais, São Paulo and Maranhão. Arbitration is nowadays a technique with great visibility in the Brazilian scenario, due to its regulation by Law 9.307 / 96 and subsequent modifications, among which, expressly allows the Public Administration to resolve the conflicts, in the which they appear as part, through arbitration. The perspective faced goes through the conception of effectiveness, in order to verify, from the criteria of economics, speed and specialization, its meanderings in the Brazilian states under study. With this purpose, information and data will be handled, based on a thorough bibliographical and documentary research on the subject.Item A ATUAÇÃO DO PODER JUDICIÁRIO MARANHENSE NA APRECIAÇÃO DOS CASOS DE VIOLÊNCIA DOMÉSTICA E INTRAFAMILIAR CONTRA A MULHER IDOSA NA COMARCA DE SÃO LUÍS DO MARANHÃO.(Universidade Federal do Maranhão, 2016-08-01) VELOSO, Aparecida Fernanda Albuquerque Pinto; SAUAIA, Artenira da Silva e Silva; 406500063-72This work aims contributing to a comprehension of the paths walked by elderly women victim of domestic or familiar violence in São Luís, Maranhão, while in the struggle for judicial protection. First of all, it is highlighted how the process of life expectation happens through different patterns between the sexes, including the awakening of a phenomenon known as oldness feminization, bringing the need of analysis about the treatment offered to this woman in specific legislation. Thus, the main idea is built from the analysis of legal structures concerning tothe protection of the elderly inside the Federal Constitution, the National Policy of Elderly and in the Statute of Elderly, referring that, in general, they do not bring specific protection to the old women victim of domestic or familiar violence, what makes necessary the use of Lei Maria da Penha to protect their rights. One also carefully considers the conditions of women and old women in the search of overcoming the patriarchal culture, which prevents the accomplishment of rights, so that it becomes possible to achieve a reality with dignity and no violence against old women. Besides, it is sought to comprehend the jurisprudence from the Local State Court (Tribunal de Justiça do Maranhão) about the appreciation of cases about domestic and familiar violence against this woman, concerning to the qualification of these violences under the look of these categories. It is broached the jurisdiction and competency on the processes related to violence against old women, concerning to the application of Elderly Statute and/or Lei Maria da Penha. Thus, the field stablished for this research was the Local State Court (Tribunal de Justiça do Maranhão), the 8th Criminal Court - which answers for the Court of the Elderly -, the Special Court of Women, the First Special Criminal Court and the Public Prosecution’s Offices that deal with elderly, women and health. The analysis of processes related to elderly women in the period from 2011 to 2015, downloaded and in course on the 8th Criminal Court, the Special Court of Women and in the First Special Criminal Court was used as instrument for collecting data. Another aspect emphasized was the presentation of the actual standpoint of the Criminal Chambers from TJ-MA about the competency to process and judge situations involving domestic and familiar violence against these women. In terms of methodology, the evaluative research was chosen, and it was conducted through a quantitative and qualitative focus, through the critical-dialectical approach, enabling a reconstruction of the reality faced by this old woman victim of violence; and also, by the articulated use of different research procedures and collecting information, counting on semi-structured interviews with magistrates from specific local courts, from the Special Court and with members of Public Prosecution in charge of the respective offices.Item A atuação do STF no enfrentamento da pandemia de Covid-19: análise sobre os cenários e perspectivas do federalismo sanitário cooperativo no Brasil(Universidade Federal do Maranhão, 2022-03-30) COSTA, Laísse Lima Silva; RAMOS, Edith Maria Barbosa; http://lattes.cnpq.br/7085054421011701; RAMOS, Edith Maria Barbosa; http://lattes.cnpq.br/7085054421011701; RAMOS, Paulo Roberto Barbosa; http://lattes.cnpq.br/4081165602902213; MARQUES, Leonardo Albuquerque; http://lattes.cnpq.br/3747271708071776The present research aims to understand the scenarios and perspectives of cooperative sanitary federalism in Brazil, from the role of the Federal Supreme Court in facing the Covid-19 pandemic. For this, the decisions handed down in the context of concentrated control of constitutionality, emanating from the promulgation of the Federal Constitution of 1988 to March 11, 2021, were analyzed, a period that covers, respectively, the implementation, by the original constituent power, of health policies public under the foundation of cooperative federalism and one year after the declaration of the Covid-19 pandemic by the World Health Organization. Initially, the theory of federalism was discussed, from a historical perspective, as well as its implementation in constitutionalism Brazilian. Then, the main historical, conceptual and normative aspects concerning the right to health and the structuring of sanitary federalism, both internationally and in Brazil, were addressed. Finally, using the content analysis procedure method, developed by Lawrence Bardin, we proceeded to study the decisions of the Federal Supreme Court, issued in the context of abstract control of constitutionality and that simultaneously address the right to health and federalism, in order to make it possible to infer knowledge of the messages contained in them. Furthermore, in relation to the reasoning developed in this research, the comprehensive method, proclaimed by Max Weber, was used, starting from the construction of the ideal type of cooperative sanitary federalism present in the Brazilian constitutional order. By way of conclusion, it is understood that, given the emergence of the Covid- 19 pandemic, the Federal Supreme Court attributed greater prominence to cooperative sanitary federalism, thus remaining characterized as a jurisprudential evolution, since, when comparing the period pre- and post-pandemic, there is a clear emphasis, in the latter, on the structure provided for by the 1988 Constituent Assembly in the area of health.Item CONSELHO NACIONAL DE JUSTIÇA E OS MEIOS ALTERNATIVOS DE RESOLUÇÃO DE CONFLITOS: avaliação da eficiência dos Centros Judiciários de Solução de Conflitos na comarca de São Luís - MA.(Universidade Federal do Maranhão, 2016-09-15) BARBOSA, Wermeson Pinheiro; RAMOS, Edith Maria Barbosa; 686962483-68; http://lattes.cnpq.br/7085054421011701The objective of this research was to evaluate the efficiency of Conflict and Citizenship of the City of St. Louis Solution for Legal Centres - MA from 2013 to 2015, from the actions undertaken by the State of Maranhão Court of Justice to implement Resolution No 125/2010 of the National Council of Justice (CNJ), which established the National Judicial Policy Suitable Treatment of Conflicts of Interest. For this, rebuilt from the modernity, the process of transformation of the state and the judiciary in the world and in Brazil, which resulted in increased litigation and bureaucracy, slowness and inefficiency of the judicial services. This time, he served as theoretical framework the third wave of access to justice movement formulated by Cappelletti and Garth, who presented as a solution for legal problems a wide range of reforms aimed to make it simple, economical and efficient justice system and create alternative means of conflict resolution. It argued that the implementation process of alternative means of conflict resolution in Brazil was the result of international economic pressures of the World Bank and internal dissatisfaction with the performance of the judiciary, especially, after the democratization of the country with the Federal Constitution of 1988 . This reform, which was to mark the Constitutional Amendment No. 45/2010, was influenced by the managerial vision of public administration, established in Brazil by Constitutional Amendment No. 19/98, which encouraged the CNJ to implement the judicial administration typical elements of the initiative private as strategic planning, achievement of goals, measuring results in a clear relationship of cost benefit. It was formulated reasoning from the deductive method, as it left the general impositions of CNJ on the National Judicial Policy Treatment Suitable for Conflicts of Interest to reach local findings on the implementation of efficiency of this policy, taking advantage, for both, the Technical Document 319 of the World Bank, Resolution 125/2010 of the CNJ, Resolution No. 10/2011 of the Maranhão Court of Justice and the reports and crafts provided by Citizenship and Conflict Settlement Judicial centers portrayed the operation of these units in the years from 2013 to 2015. As a result, it was found that CEJUSC, although in full operation, need better structure and can be better exploited.Item Direito dos povos e comunidades tradicionais de terreiro: reflexões sobre a discriminação racial às religiões de matriz africana em São Luís do Maranhão(Universidade Federal do Maranhão, 2017-12-15) SEREJO, Jorge Alberto Mendes; SHIRAISHI NETO, Joaquim; 085492488-43; http://lattes.cnpq.br/1945327707689415; SHIRAISHI NETO, Joaquim; 085492488-43; CHAI, Cassius Guimarães; http://lattes.cnpq.br/7954290513228454; DANTAS, Fernando Antônio de Carvalho; http://lattes.cnpq.br/4265365823959236The present work presents the sociojuridic categorization of the tradicional peoples and communities of terreiro as a modality of traditional peoples and communities that have emerged in the national political scene since the 1970s, constituting the so-called "new" social movements. It shows how specific territorialities of these units of mobilization led to changes in the national legal scenario, increasing rights and disputing positions in the legal field. It undertakes an investigation of how the struggle for the right to recognition terreiro’s peoples has been transformed into the fight against racism and how these discussions intersect the issue of religious freedom. At this point, the right to religious freedom is presented as a liberal legacy, which in Brazil has coexisted with racial terror and the coloniality of knowledge and power, responsible for erasures that lead daily to the discrimination of African religious practices belonging to minorities ethnic groups. These theoretical reflections invite a re-reading of the notion of racism and religious intolerance from decolonial perspectives, leading to the categorization of the right to religious freedom of terreiro’s peoples and communities as ethnic rights. Based on the experience of Pai Tico, from the Terreiro Ilê Axé Oyá Sapatá, a theoretical and methodological reflection was sought to investigate the deletions and the prohibitions that have hampered or impeded the knowledge, by the local Judiciary, of cases of violation of rights ethnic and racial groups of traditional peoples and communities of terreiro, especially in those violations resulting from racial discrimination based on religious motivation under the Law nº. 7.716/89 (Lei “Caó”).Item A ERA DA DELEGAÇÃO DAS RESPONSABILIDADES(Universidade Federal do Maranhão, 2014-04-07) Moura, João Carlos da Cunha; SOUSA, Mônica Teresa Costa; CPF:44058640391; http://lattes.cnpq.br/2651036312847509The following dissertation seeks understand about the modern concepts of subjectivity and juridical thought, as well their institutional reflect. Investigate the relationship between I and other as driven and universalized conducts. After this theoretical definition, based upon the dialectical study on Jürgen Habermas e Michel Foucault, the work searches differentiate public and political in the democratic and constitutional context, exploring the institutional formation of State as enterprise of Law and whose interests are elevated in the construction of the later. From the logical of separation of powers, analyses the space of political domain. Finally, it intends to question about delegations of responsibilities to the Public Power: a society that inserted itself in an age of delegations of responsibilities of private matters which charges to the scope of Public Power taking actions about responsibilities and decisions of individual imprint, whose direction is given by devices (laws, sentences etc.) that creates a legitimate discourse about the theme which wants to debate, setting, at the end of a chain of relations of power, socials and normative, the Judiciary.Item Escravidão contemporânea no Maranhão: um estudo sobre mulheres em condições análogas às de escrava e as políticas estaduais de resgate(Universidade Federal do Maranhão, 2023-03-02) SOUSA, Karine Sandes de; SANTANA, José Cláudio Pavão; http://lattes.cnpq.br/5198686445529109; CHAI, Cássius Guimarães; http://lattes.cnpq.br/7954290513228454; CHAI, Cássius Guimarães; http://lattes.cnpq.br/7954290513228454; SANTANA, José Cláudio Pavão; http://lattes.cnpq.br/5198686445529109; CARNEIRO, Monica Fontenelle; http://lattes.cnpq.br/6170689209803775; MESQUITA, Valena Jacob Chaves; http://lattes.cnpq.br/2222933055414567The object of this research is the contemporary slavery in the state of Maranhão, most notably regarding the rescue of women subject to this category of exploitation, and the effectiveness of the State Program of Confrontation against the Unfree Labor in Conditions Analogous to Slavery (Programa Estadual de Enfrentamento ao Trabalho em Condições Análogas à de Escravo) as a way of access to the Fundamental Rights of liberty, dignity of human person, and social reinsertion. The research is structured in the general goal of identifying what is the real contribution of the State Department of Human Rights and Public Participation (Secretaria de Estado de Direitos Humanos e Participação Popular, “SEDIHPOP”), within the scope of the State Program of Confrontation, and the access to the above-mentioned Fundamental Rights regarding the unfree working women rescued in the state of Maranhão, based on the main theoretical framework of: Dworkin (2002, 2005, 2014), Sarlet (2011, 2016), Delgado e Delgado (2017), Santana (2021), Chai (2004, 2022), Schwarz (2008), Chaves (2016), Miraglia (2016), Sen (2010, 2011) and Sousa (2011). Concerning the methodological pathway, the inductive reasoning and the scientific method along with the legal-descriptive and the legal-propositional methods have been adopted. The research techniques applied were the bibliographic annotations together with the utilization of questionnaires for data collection, producing a documentary exploratory research with a qualitative and quantitative nature. Deriving out of the results that have been obtained, the initially proposed axiom is confirmed, stating that the performance of the SEDIHPOP grants the Fundamental Rights to the women even though its invisibility factor is a negative element in the composition of the data collected from the rescues. As general conclusion, it is possible to identify that the fulfillment of the actions from the Confrontation Program is constant, however there is an obstacle: the challenge in proceeding with the follow-ups and verification of the effectiveness of the actions to the detriment of the rescues made, in a way that the re-enticement is hindered, and the social reinsertion is effective enough to promote the adequate liberty as personal and community development of the rescued women. Moreover, it is possible to conclude that the specialized performance is somewhat timid, considering that the concern with the gender element has been proposed by the Program of Confrontation itself.Item O fenômeno da corrupção nos municípios do Maranhão: a violência estrutural, seus reflexos nos baixos índices de desenvolvimento humano e as possibilidades democráticas decorrentes do controle social formal(Universidade Federal do Maranhão, 2021-07-15) CASTRO, Sandro Rogério Jansen; GUIMARÃES, Cláudio Alberto Gabriel; http://lattes.cnpq.br/7560021977120603; GUIMARÃES, Cláudio Alberto Gabriel; http://lattes.cnpq.br/7560021977120603; VELOSO, Roberto Carvalho; http://lattes.cnpq.br/9413351941396091; CASTELO BRANCO, Thayara; http://lattes.cnpq.br/7047843216689603This dissertation aims to understand the phenomenon of corruption in the municipalities of Maranhão, portrayed in the diversion of public funds and its connections with structural violence and the low human development index, as well as the need to change the paradigm of the criminal justice system to coping with the problem. The work is divided into a theoretical-critical study through the inductive methodological approach; the method of legal descriptive procedure and the research strategies used were documentary and bibliographic. The work is divided into three chapters. At first, corruption is contextualized in the current scenario to understand the crime of criminal responsibility of mayors under the aegis of Decree Law No. 201/67, as well as the breakdown of documentary data collected by the Federal Police and the correlation with the Human Development Index - HDI in Maranhão. Then, white-collar crime is objectively understood from the perspective of the critical paradigm of criminology. And, finally, the consequences of the diversion of funds revealed in structural violence and its effects on the low human development index are evaluated, as well as the need for the democratization of Criminal Law.Item Judicialização e direito a saúde: Uma análise dos fundamentos das decisões do Tribunal de Justiça do Estado do Maranhão sobre o acesso a medicamentos como forma de alcance dos Objetivos de Desenvolvimento Sustentável da Organização das Nações Unidas(Universidade Federal do Maranhão, 2023-07-13) OLIVEIRA, Fabrício Alberto Lobão de; RAMOS, Edith Maria Barbosa; http://lattes.cnpq.br/7085054421011701; RAMOS, Edith Maria Barbosa; http://lattes.cnpq.br/7085054421011701; SILVA, Artenira da Silva e; http://lattes.cnpq.br/3279747633416042; SENA, Jaqueline de Prazeres; http://lattes.cnpq.br/0983674249152352This research aimed to analyze the foundations of the decisions of the Court of Justice of Maranhão (TJMA), on the subject of health related to access to medicines, as a way of guaranteeing the effectiveness of goal 3.8 of Agenda 2030, of the 3rd Sustainable Development Goal (SDG) of the United Nations (UN), in the city of São Luís (MA), considering the period between 2016 and 2020. The central discussion of this research was based on the idea of justice based on equity in relation to access to health, based on the theories of John Rawls (2016) and Norman Daniels (2008), who privilege their theories anchored in institutions for the promotion of what they understand to be fair. This research was in line with the objectives of the Graduate Program in Law and Institutions of the Justice System (PPGDIR), in the research line of “Dynamics and Effectiveness of Institutions of the Justice System”, since it sought to know how the Maranhão's Justice System can offer devices to be more efficient, and based on this knowledge, make its actions more productive, contributing to a more inclusive society. The hypothesis is that the judicialization of health is an important instrument in guaranteeing the achievement of target 3.8 and, with that, two assumptions were defined: the judicialization of health impacts on the elaboration of public policies and has the propensity to promote social justice and equity to to the extent that it enables access to health resources related to access to medication. In order to reach the hypothesis and assumptions, specific objectives were outlined, namely: understanding the universalization of health from the perspective of John Rawls's Theory of Justice (2016) and Norman Daniels' Theory of Health (2008); apprehend if there is effectiveness of the 3rd SDG, target 3.8; and to evaluate how public health policies in the city of São Luís (MA) were influenced by TJMA decisions. This is a quantitative-qualitative, descriptive-explanatory, documental study. Data collection was carried out from the primary sources of processes related to the supply of medicines, with authorized access to lawyers, on the website pje.tjma.jus.br. The analysis of the research data was based on the Content Analysis developed by Laurence Bardin (2016). After analyzing this research, it was inferred that the central hypothesis raised, that "the judicialization of health has a propensity to guarantee the effectiveness of target 3.8 in the state of Maranhão, more precisely in the municipality of São Luís", despite not being conclusively, indicates that judicialization is a present phenomenon as a way to boost the guarantee of access to medicines, and also capable of promoting public policies, such as the creation of the Specialized Health Court in the Comarca of São Luís and the Health Conciliation Center . Therefore, although the points presented at the end of the research do not demonstrate a direct correlation between TJMA decisions on the issue of health related to access to medicines in the city of São Luís (MA), and the achievement of goal 3.8 of Agenda 2030 of the 3rd Objective of the ODS, of the UN, it is possible to intuit that, indirectly, the judiciary sought to provide access to safe, effective and quality medicines offered by the Unified Health System (SUS).Item JUSTIÇA, AMBIENTE E ETNICIDADE: O controle judicial das licenças ambientais lesivas a grupos étnicos(Universidade Federal do Maranhão, 2015-04-06) Soares, Alexandre Silva; SHIRAISHI NETO, Joaquim; CPF:08549248843; http://lattes.cnpq.br/1945327707689415The dissertation investigates the criteria used by the judiciary for the trial of disputes concerning the environmental licensing of projects identified as harmful to ethnic groups, especially indigenous and quilombo communities. By adopting as theoretical works of François Ost, Michel Foucault and Pierre Bourdieu, we proceeded to initially examine the construction of the legal discourse on the environment, from the examination of the legal and constitutional order; then proceeded to the examination of the theme of ethnic identities in the Constitution, as well as its relationship with the protection of the environment, specifically analyzing the environmental licensing instrument, about the administrative actions of control of natural resources, along with the legalization public policies on the environment. We conducted case studies of three projects (HPPs Belo Monte, Teles Pires and the transposition of the river São Francisco) from the jurisprudence of the Supreme Court brasilian, proposing to reflect on the decision criteria effectively adopted.Item Medidas de segurança, insanidade mental e periculosidade: o paradigma etiológico contra o Direito Penal no Estado democrático de Direito(Universidade Federal do Maranhão, 2022-03-08) ABREU, Gabriel Silva de; VELOSO, Roberto Carvalho; http://lattes.cnpq.br/9413351941396091; VELOSO, Roberto Carvalho; http://lattes.cnpq.br/9413351941396091; CARVALHO, Márcia Haydeé Porto de; http://lattes.cnpq.br/5154808741026403; BECHARA, Fábio Ramazzini; http://lattes.cnpq.br/6852406985950434The dissertation discusses the problem of the contradiction existing between the institute of the Security Measure, the current system surrounding periculosity, and the Brazilian Criminal Law in the Democratic Rule of Law. Applying the hypothetical-deductive method with a juridical scientific approach, its objective rests on demonstrating that the institute in question contradicts the theoretical basis of Criminal Law, in the ruling constitutional democratic order. Specifically, the research analyses the foundation to the notion of periculosity, rooted in Positivist Criminology’s etiological paradigm, and dissects the application of Security Measures in the Democratic State of Law, providing, as a result, that periculosity, as a foundational concept for applying security measures, presents several inconsistencies with the current system of Brazil's legal order, that limits the state's punitive power. At its end, it presents an illustrative empirical analysis of normative institutional dispositions and data, as well as a ruling on the subject.Item Mutações constitucionais promovidas pelo supremo tribunal federal: Uma análise representativa de julgados de 2016 a 2018(Universidade Federal do Maranhão, 2020-09-26) REIS, Natália de Jesus Silva; CARVALHO, Márcia Haydée Porto de; http://lattes.cnpq.br/5154808741026403; CARVALHO, Márcia Haydée Porto de; http://lattes.cnpq.br/5154808741026403; RAMOS, Paulo Roberto Barbosa; http://lattes.cnpq.br/4081165602902213; SILVA, Lucas Gonçalves da; http://lattes.cnpq.br/1696968535834577; RAMOS, Edith Maria Barbosa; http://lattes.cnpq.br/7085054421011701Constitutional changes play a fundamental role in the permanence and continuity of the constituent work and greatly influence at the identification of the rule of law with the ideals of a democratic regime. This happens due to its conciliatory task between the grandeurs of stability and dynamics of the constitutional order. Constitutional changes accompany the transformations of reality and society to make the fundamental order compatible with the new generation that intends to legally conform, allowing constitutional rules to be effectively implemented. Precisely because they are mechanisms limited by the provisions of the original constituent power, the constituted powers and their institutions must opt for restricted actions when modifying the Constitution. However, such an objective is not always satisfied and although certain conflicts and tensions between the Powers are natural in the composition of a constitutional democracy the problem lies in the overuse of channels for constitutional change, especially informal ones. The informal changes known as constitutional mutations modify the meaning, sense and scope of the constitutional norm in a way that its linguistic statement remains unchanged. This silent character of constitutional mutations becomes worrisome when the rules of the democratic game are weakened to such an extent that it leads to the non-observance of its limits and the diminishing of the mechanims of control, which opens the way to the subversion of the meaning of constitutional norms. Through their misuse, mutations assume the status of unconstitutional and undermine the text and spirit of the Constitution, increasing any crisis that may have given rise to it. Therefore, the present research aims to analyze the relevance of the constitutional mutations promoted by the Supreme Federal Court, considering the accentuated historic of amendments to the 1988 Constitution and the troubled political-legal scenario Brazil went throught in the period of 2016 to 2018. The methodological approach followed the lines drawn by the method of historical-dialectical materialism, taking into account the analysis of constitutional mutations as an instrument inspired by the transformations of the sociopolitical, economic and cultural basis of reality; with the complementary assistance of the comparative method, which allowed the reconstruction of the historical-conceptual trajectory of the mutations within the German public law and the comparison with the Brazilian context in which it was incorporated. Finally, the analysis of the decisions of the Supreme Federal Court perceived by the Court itself as "constitutional changes" in the interstitium from 2016 to 2018 allowed the examination of the arguments used by its judges towards the institute, the procedural instruments that most often introduced these informal changes and the teoric branch that prevails on the subject.Item Política judiciária nacional de tratamento adequado dos conflitos de interesses: um estudo de caso sobre a mediação e a conciliação no 1º Centro Judiciário de Solução de Conflitos do Fórum Desembargador Sarney Costa(Universidade Federal do Maranhão, 2019-07-05) COELHO, Washington Souza; BONATO, Giovanni; BONATO, Giovanni; ZUFELATO, Camilo; http://lattes.cnpq.br/3975939347414439; RAMOS, Newton Pereira; http://lattes.cnpq.br/2399244462327090This paper analyzes the effects of the Judicial Policy on the Treatment of Conflicts of Interest instituted by Resolution 125/2010, as well as verifying the changes arising from the New Code of Civil Procedure, the Mediation Law and the use of Appropriate Means of Resolution Conflicts after these normative milestones, for this, the application of these means in the Court of Justice of the State of Maranhão is verified, as well as, it performs an analysis of the participation and contribution of the institutional subjects and propellers of the judicial policy within directives integrated for the purpose to analyze whether there has been a reduction in conflicts of interest and how this occurs. Finally, it is carried out by means of the qualitative method of case study, having as object the 1 st. Cejusc of the Judicial Council of Sarney Costa, which integrates the structure of the Judicial Power of Maranhão, where it was sought to analyze the level of user satisfaction, if the means proposed by the CNJ were actually implemented and how the conflict facilitators act.Item Princípio da subsidiariedade na jurisprudência do Supremo Tribunal Federal: uma análise dos conflitos de competência entre os entes federativos no período de 1988 a 2022(Universidade Federal do Maranhão, 2023-03-20) COSTA, Fredson de Sousa; RAMOS, Paulo Roberto Barbosa; http://lattes.cnpq.br/4081165602902213; RAMOS, Paulo Roberto Barbosa; http://lattes.cnpq.br/4081165602902213; CARVALHO, Márcia Haydée Porto de; http://lattes.cnpq.br/5154808741026403; LEAL, Fernando Ângelo Ribeiro; http://lattes.cnpq.br/9858226603548264This research sought to analyze to what extent the Federal Supreme Court applies the principle of subsidiarity as a method of solving conflicts of competence between federative entities. For that, judgments were analyzed in the context of concentrated control of constitutionality within the scope of the STF, in the period from 1988 to 2022, which discussed who had the competence to edit a certain legislative act or to implement a certain public policy. As a method of procedure, Lawrence Bardin's content analysis was used, with the use of the categorical analysis technique, to study the selected judgments, according to the parameters established for the research. Before that, an investigation was carried out on the origin and meaning of the principle of subsidiarity and its application as a method of sharing competences. Afterwards, the presence of the principle of subsidiarity in comparative law was verified, with emphasis on the European Union, Germany, Italy and Portugal. An analysis was carried out of the models of division of competences adopted by Brazil, from the 1891 Constitution to the 1988 Constitution. It was found that, within the scope of Brazilian constitutional law, some scholars defend that the 1988 Constitution incorporated, even if implicitly, the idea of subsidiarity in the division of tasks between the Union, the States, the Federal District and the Municipalities, in the field of common and concurrent competences. Finally, the research found that the STF still does not apply the principle of subsidiarity as a technique for sharing competences, in the sense of favoring local initiatives to the detriment of the central entity. Despite the theme having been raised on several occasions, however, the debate is still incipient.Item Os processos estruturantes no âmbito da Jurisdição Constitucional: a construção da decisão adequada por meio do diálogo institucional(Universidade Federal do Maranhão, 2021-02-23) AROUCHE JUNIOR, Deomar da Assenção; CARVALHO, Márcia Haydée Porto de; http://lattes.cnpq.br/5154808741026403; CARVALHO, Márcia Haydée Porto de; http://lattes.cnpq.br/5154808741026403; RAMOS NETO, Newton Pereira; http://lattes.cnpq.br/2399244462327090; SILVA, Sandoval Alves da; http://lattes.cnpq.br/2744878887909140; RAMOS, Paulo Roberto Barbosa; http://lattes.cnpq.br/4081165602902213This dissertation aims to study the process of the structural litigation on the Constitutional Jurisdiction. It has been analyzed the origins of this category of American law based on the doctrine and concrete cases decided by the Supreme Court of the United States of America. Another cases of the comparative law from countries as Argentina, Colombia, South Africa and India were analyzed. After that, some points as constitutional interpretation, judicial activism, judicial review and topics related to the democratic legitimacy of the Judiciary action were approached. Whereas that in the last decades various structural injunction about inefficiency of the State has been filled on the Supremo Tribunal Federal, it makes necessary a profound analysis of the processing of those actions. For this reason, the present study analyzed the evolution of the techniques of implementation of decisions made in structural injunctions in the comparative law in order to verify the applicability in the Brazilian law. In this sense, it was sought to investigate the mechanisms available in the Brazilian procedural law that can be applied to give more efficiency to structural litigation. In those investigations it was found a tendency to sought a solution to structural litigations through dialogical mechanisms without, however, giving up more intense intervention measures. According the cases decided by the Brazilian Supremo Tribunal Federal, it is almost a consensus about the fact that the measures to effectuate a decision, must be chosen for each case considering their particularities but always looking forward the participation of others players in the construction of the solution.Item Proibição da publicidade infantil e o Estado: Proteção da infância ou violação de liberdades?(Universidade Federal do Maranhão, 2023-06-16) COSTA, Denise Ribeiro Gasparinho Duailibe; SOUSA, Monica Teresa Costa; http://lattes.cnpq.br/2651036312847509; SOUSA, Monica Teresa Costa; http://lattes.cnpq.br/2651036312847509; VELOSO, Roberto Carvalho; http://lattes.cnpq.br/9413351941396091; RAPOSO, Rodrigo Otávio Bastos Silva; http://lattes.cnpq.br/2611895356534668This dissertation discusses the appropriateness and necessity of the State's action in the sense of prohibiting advertising aimed at children. In the first chapter, the legal, economic and social aspects of advertising activity were addressed, especially those aimed at an audience made up of children, in addition to questioning the strength of CONANDA Resolution 163/2014 to support such prohibition. In the second chapter of the work, the limit of State action and the role of the family in protecting children exposed to the content of advertising campaigns that have children under 12 (twelve) years of age as their target audience were questioned, adopting as a counterpoint to this examination, the legal institute of autonomy, which allows the control over the content delivered to minors to be of the persons responsible for them. Also in this session, the impact on the development of children sheltered from exposure to children's advertising was inquired. In the third chapter, it was analyzed whether the ban intended by civil society and defended by Brazilian and foreign scholars has the power to really bring protection to children, as well as whether this ban is in harmony with the constitutional text, especially with regard to freedom of expression and initiative and if it does not conflict with infra-legal norms. For this purpose, the constitutionality, legality and public interest of some legislative proposals already presented were analyzed with the aim of banning advertising for minors. The inductive method was used, since the construction of knowledge took place from a particular situation to carry out a general study.Item SOCIEDADE INFORMACIONAL E CRIPTOMOEDAS: análise comparativa da atuação do Superior Tribunal de Justiça e do Conselho Administrativo de Defesa Econômica na efetivação do Direito Antitruste no Brasil.(Universidade Federal do Maranhão, 2020-03-31) FERREIRA, Carlos Anderson dos Santos; SOUSA, Mônica Teresa Costa; http://lattes.cnpq.br/2651036312847509; SOUSA, Mônica Teresa Costa; http://lattes.cnpq.br/2651036312847509; PEREIRA, Paulo Sérgio Velten; http://lattes.cnpq.br/6050740864470423; BENTO, Leonardo Valles; http://lattes.cnpq.br/0313302878628265; SILVA, Delmo Mattos da; http://lattes.cnpq.br/7268737133400216The development of new technologies within the scope of the information society has allowed for the emergence of economic activities that promote the breaking of paradigms, such as, for example, the new types of financial assets called cryptocurrencies. In spite of the short time of its existence, commercial transactions using cryptocurrencies are experiencing exponential growth in Brazil, exceeding the volume of business carried out on the Stock Exchange in the last year. The disruptive nature of technology, the speed at which commercial activities are increasing and the lack of a central authority to control operations have aroused the concern of national financial institutions, especially the main Brazilian retail banks, which have suffered the greatest impacts from market from the competition promoted by the entry of cryptocurrency brokers into the private investment market, a circumstance that motivated the unilateral closure of these brokers' bank accounts. In this scenario, the general objective of this research is to evaluate comparatively the performance of STJ and CADE for the enforcement of Antitrust Law in the country, taking as a reference the case involving the unilateral closure of cryptocurrency brokerage bank accounts. With support from the theoretical framework of Manuel Castells, the main characteristics of the information society are studied, as well as its importance for the development of cryptocurrencies and their uses for the economy. After, based on the constitutional principles of free initiative and free competition, as well as the idea of a contract as a legal guise of economic operations, a qualitative analysis of the decisions made by STJ and CADE is promoted based on the provisions provided for in Law 12.529/2011, with a special focus on the normative provision of acts that constitute an infraction of the economic order. It is concluded that the analyzed decisions do not contribute to the effectiveness of Antitrust Law in Brazil, as they no longer consider the practice of banks to promote the unilateral closure of bank accounts of brokers as abusive, increasing transaction costs by creating artificial barriers for potential competitors to enter the relevant market. This study has been carried out using the deductive approach, the monographic procedure and the bibliographic method of reserach.Item O Supremo Tribunal Federal e as omissões inconstitucionais do Congresso Nacional: Limites e possibilidades ao estabelecimento de uma racionalidade decisória em sede de Ações Diretas de Inconstitucionalidade por Omissão(Universidade Federal do Maranhão, 2023-05-05) FERRAZ, Fernanda Carvalho; CARVALHO, Márcia Haydée Porto de; http://lattes.cnpq.br/5154808741026403; CARVALHO, Márcia Haydée Porto de; http://lattes.cnpq.br/5154808741026403; SANTANA, José Cláudio Pavão; http://lattes.cnpq.br/5198686445529109; LOPES, Jaqueline Prazeres de Sena; http://lattes.cnpq.br/0983674249152352With the growing role of the Judiciary in recent years and the Constitution of the Republic as the center of the Brazilian legal system and normative system, it is necessary to talk about issues such as division of Powers, Judicial Activism, Judicialization of Politics and mainly about Constitutionality Control. In this way, this research aimed to permeate these concepts and analyze the decisions of Direct Actions of Unconstitutionality by Omission in the post 1988 Constitution period, to examine to what extent the understanding of the Federal Court of Justice (STF) has changed, bringing a more activist rationality and logic, in the sense of supplying unconstitutional omissions and protecting fundamental rights. Everything, from the perspective of theoretical references such as Jeremy Waldron, Andrei Marmor and Robert Alexy, who have in common the formulation of theories discussing the importance of interpretation by judges, on judicial review and the legitimacy of the Judiciary to do so. To this end, an inductive methodology was adopted, with a qualitative bias, and using jurisprudence analysis as a methodological procedure, in order to be able to understand the influence of such decisions for the implementation of constitutional norms by the National Congress and whether they are in compliance with art. 103, §2 of the Constitution of the Republic of 1988.Item Tratamento do superendividamento do consumidor à luz da Lei n° 14.181/2021: contribuições sociais e econômicas do novo modelo jurídico(Universidade Federal do Maranhão, 2023-03-24) GONÇALVES, Clayrtha Raissa Nascimento; PEREIRA, Paulo Sérgio Velten; http://lattes.cnpq.br/6050740864470423; PEREIRA, Dr. Paulo Sérgio Velten; http://lattes.cnpq.br/6050740864470423; VELOSO, Roberto Carvalho; http://lattes.cnpq.br/9413351941396091; MARQUES, Claudia Lima; http://lattes.cnpq.br/9823041159237981The overindebtedness of customers is the phenomenon that includes those people who have more debts in relation to their payment capacity. The law n. 14.181/2021 (July 1st, 2021) regulates the prevention and the treatment of overindebtedness. This research discusses the application of this law about how it can contribute to the treatment of overindebtedness. The hypothesis is about the recognition of economical and social relevance of referred treatment, analyzing the possible practical consequences of its application. The research is organized in relation to the general objective to analyze critically the treatment of consumer overindebtedness obtained by recent law, measuring the possible social and economical impacts in the construction of new judicial paradigms. Specific objectives, in Contemporary Private Law area, achieving relevant considerations to the construction of decision legal pattern; describing the inherent and encircling characters about the consumer overindebtedness; and analyzing the possibility of economical and social impacts of consumer legislation of treatment of the overindebtedness. The basic theory is Miguel Reales ́s (1994) pattern, which contributes to construction of new legal patterns, including the decision model issued by judges; this is added to the view of legal consequentialism of Ricardo Lorenzetti (2009). Methodologically, we can choose qualitative research, with reasoning of intuitive kind, to use particular data from pilot projects and theories to infer a general truth wider than funded premises. As a procedure method, we used the monographical method. As a generic kind of investigation of applied social sciences to legal science, we use the legal, descriptive and propositive researches. Based on critical, social and legal analysis; the techniques of bibliographical research and documentary one are chosen by the author. The practical aim of the research is to highlight a way of contribution to the reality, to help in the solution of conflicts by Judiciary in the light of consumer overindebtedness treatment institute.