Faculdade de Direito

Trabalho de Conclusão de Curso (TCC) onde abordamos o fenômeno dos influenciadores digitais da cultura fitness, a partir do conceito de bioascese.
André C. Gomez e Renata de O. Coutinho são os autores e a profª Ms. Luíza Maria Silva de Freitas foi a orientadora.

Edward Snowden’s leaks published by many different media vehicles around the world have demonstrated that individuals’ most basic rights might have been continuously violated, mainly their right to privacy and freedom of speech, and therefore reforms would be in need. If this presumption turns out to be true, governments and industry shall foresee citizen’s requests and should protect them by establishing limitations, safeguards, oversight and accountability. Nevertheless, some of the proposed solutions up to this date might have an undesirable opposite effect, and instead of guaranteeing privacy and freedom of speech and other basic rights, they might provide tools to further violations. It is necessary to come up with internationally agreed solutions that will take into consideration not only current intrusions and damages, but also future human rights violations scenarios. These solutions must be enforced not only to governments’ activities, but also to the private sector, which might perform similar violations while providing their services and the private sector. This article will advocate that despite the differences between cultures, and the distinctive approaches given to, e.g., privacy and freedom of speech, a basal framework must be in place and it must be enforced in every jurisdiction. It will advocate that most effective solution to effectively enforce these rights might be to embed by design in devices and services technologies that follow internationally agreed safeguards, limitations and protections. This might overcome ineffective oversight and lack of political will, providing a foundation to more protected environments, even when national security is at stake. Therefore, it will be argued that technology might be the best answer to assure citizens’ fundamental freedoms in the digital era. It will underline that a similar methodology is currently in use by the World Trade Organization (“WTO”) in matters related to food and health security, and agreements on basic privacy and data protection privacy by design standards might employ a similar system.

The attempt to expand the protection of intellectual property assets has become common. Either by cumulative protection, in cases where the same asset receives protection by more than one type of intellectual property right (“IPR”), or by extending the period of protection upon asserting another type of right when the previous protection period has finished. These practices might have different consequences that can be profitable to IPRs owners, but not necessary good for the society. For example, extending the protection of a literary work by conferring trademark rights to it can practically obstruct the work’s path towards public domain, which might give rise to doomful consequences. Trademark protection of creative works can also be a deterrent for free speech, since trademark and copyright exceptions are different. This work aims on analyzing how the United States has been approaching the question of trademarking creative works and how the country’s experience can serve as guidance and influence to the European Union and its current lack of definition involving this issue.

The repayment of indirect taxes raises questions not only in Brazil but in many parts of the world, mainly because of the so called “passing-on defense”. Brazilian Courts has given inadequate treatment to this subject, which, in fact, denies the judicial review of the tax relationship, violating the provisions of art. 5.º, XXXV, CF/88, and even the idea of rule of law. European Court of Justice has different concerns when examining the matter, recognizing that the shift of the tax burden is very difficult to determine and measure. It happens in relation to all taxes, to a greater or lesser extent, and should be taken into consideration by the legislature in fixing the rates of taxes on certain products, as a matter of tax policy, but not on individual relationships, to deny the taxpayer rights, as the repayment of ultra vires taxes, especially because it would be contradictory to do so and at the same time, deny such rights also to the ultimate consumer who eventually supported the tax burden. The price paid by consumers for goods and services, although probably higher because of taxes, cannot be confused with these taxes, so the repayment of the latter should not be hindered or embarrassed because of a (supposed) shift of tax burden.

The defeasibility is the way of reasoning that best manages the risks relating to the error, corresponding also to the way the brain of man and other animals relates to the reality around it. Within the study of law, this way of reasoning not only recommends aversion to dogmatism and responsiveness to criticism, by the scholar who elaborates theories about law, but is also applicable in the interpretation of legal texts, for which new impressions regarding other texts or the underlying reality can change initial conclusions about its meaning, in which case it is very important to consider extra textual elements. It is also pertinent in the investigation surrounding the occurrence of the facts and in discussions about values, wheter those which underlie positive law, either those that allow a critique view of the law.

The repayment of indirect taxes raises questions not only in Brazil but in many parts of the world, mainly because of the so called “passing-on defense”. Brazilian Courts has given inadequate treatment to this subject, which, in fact, denies the judicial review of the tax relationship, violating the provisions of art. 5.º, XXXV, CF/88, and even the idea of rule of law. European Court of Justice has different concerns when examining the matter, recognizing that the shift of the tax burden is very difficult to determine and measure. It happens in relation to all taxes, to a greater or lesser extent, and should be taken into consideration by the legislature in fixing the rates of taxes on certain products, as a matter of tax policy, but not on individual relationships, to deny the taxpayer rights, as the repayment of ultra vires taxes, especially because it would be contradictory to do so and at the same time, deny such rights also to the ultimate consumer who eventually supported the tax burden. The price paid by consumers for goods and services although probably higher because of taxes, cannot be confused with these taxes, so the repayment of the latter should not be hindered or embarrassed because of a (supposed) shift of tax burden.

This article discusses about the role of proof within the context of reasoning in process, specifically in the tax process. The research makes use of contributions from Theory of Knowledge and Process Theory, working with concepts of truth, presumption and burden of proof, and then examines a case over tax planning. It concludes that all cognition, ultimately, is based on evidences, but the legal system and the court establish presumptions and burdens of proof for parties, and that, in this sense, in the field of tax planning, the presumption of good faith must prevail, focusing the burden of proof on the abusive nature of the business practiced.

It is common among legal thinkers the use of the word legal dogmatic to describe scientific study of law. However, contemporary science has defined the scientific knowledge by exclusion, as the antonym of dogmatic. Furthermore, the hermeneutics today consider to be mistaken the idea that the interpreter is limited to describe norms, which are the meaning of legal texts, and because of this are indeed (re)constructed by the interpreter from his pre-understanding, the particularities the case and the values inserted in the legal system. For these reasons, the expression legal dogmatics, which confuses more than clarifies, is to be abandoned.

Comentários à LC 123/2006 (Estatuto Nacional da Microempresa e da Empresa de Pequeno Porte).

O arquivo ora disponibilizado em formato PDF diz respeito apenas à ATUALIZAÇÃO necessária em razão das alterações levadas a efeito pela LC 127/2007

This study examines the bases upon which there must be constituted a juridical system today. Not what can, in fact, at times, give it some efficiency, but what must justify it as such, in order to perform its intent adequately. Many who, today, dwell in Constitutional Rights and in the Theory of Rights state that the disagreement between natural law thinkers and positivists have been settled, but they don´t usually face the matter of juridical system fundaments, or they do it based sometimes on one or the other dicotomical currents alleged to have been surmounted.  So being, this thesis analyses the existing relationship between democracy, freedom and equality, the interdependency among those institutes and their importance in bringing positive law close to what people, whose behavior will be disciplined by it, hope it to be. Considering that freedom and equality are indispensable to democracy, it points out that its preservation is not an external limit or perhaps undue to the popular sovereignty, but the necessary condition to its exertion. It is demonstrated that a necessity of a democratic regime, guarantor of freedom and equality, results from the institutional nature of Law, and the undying human aptitude to distinguish the real from the possible, data which makes the juridical system not able to impose itself efficiently by force, but rather accepted by consensus. On the other hand, as truth is not something objective, to be definitely discovered, but something intersubjective to be built up temporarily, in an open and tolerant environment, it explains that the concept of justice must go through the same updating process, its content be determined by similar criteria, driving off then, the idea that it would be impossible its apprehension by science. The juridical system has as a goal to realize security and justice, but that must not be sought as something that exists, in itself and by itself, in nature, on the divine or universal human mind, hence, it cannot be evened up by all that might be imposed by the authorities. Just as truth, it shall be constituted intersubjectively and democratically, under the light of each society values, task to which democracy and the protection of freedom and of equality are indispensable prerequisite. From such premises, one can trace patterns to judge the correction of several juridical orders existing in the world, making them feasible to be perfected without suppressing the existing, necessity of mirroring the peculiar social values to the society which they belong to. Light is cast, specially, upon the matter of multiculturalism, for freedom and democracy allow the member of each culturally distinct community assess its adequacy and its practice correction, deciding which aspects to preserve and which to abolish. And, finally, knowing upon what our juridical system must have its fundament it becomes possible to indicate ways and paths for the brazilian juridical system, at the realm of concretion, to be less distant from such ideal.