UFERSA's Law Review

FEDERALISM, RIGHTS, AND EQUALITY BEFORE THE LAW. A LEGAL HISTORICAL APPROACH THE ARGENTINE CASE

Alejandro Agüero — Wed, 11 Dec 2024 00:00:00 -0300

The Argentine constitutional model combines, as is well known, a federal political structure with some typical features of unitary systems. This paper analyzes the tension between the system of codified national substantive law and the preservation of provincial jurisdictions in the application of the codes. It seeks to show that, as an effect of these tensions, the dominant interpretation has validated a constitutional assessment in which the organization of jurisdictional powers has greater relevance than the principle of equality before the law, with the consequent postponement of a basic principle of the liberal discourse.

PHD IN LAW AT THE SPANISH LIBERAL UNIVERSITY (1847-1914)

Manuel Martínez Neira — Wed, 11 Dec 2024 00:00:00 -0300

I make use of the celebration of the sixth Hélöise workshop to present the partial results of a research project which object is the quantitative study of the doctorate in Law in the liberal Spanish University, in a manner which it’s possible to evaluate better the relevance of this title in the post-revolutionary architecture of the legal education. Along with Aurora Miguel Alonso, director of the project, I’ve been making for years a catalogue of speeches or doctoral thesis; for what we had to make use of different archives and libraries and analyze the data a few times. As a result of what was said, the difficulties were not small, due to it being scattered material, which cannot always be found adequately conserved or catalogued, for it hasn’t received the importance it has as a source for knowing, among other things, the polemics and doctrinal interests of that moment.

THE TUTORIAL PROCESS AND ITS URGENT NEED IN UNIVERSITIES. LAW SCHOOL OF THE AUTONOMOUS UNIVERSITY OF GUERRERO

Wed, 11 Dec 2024 00:00:00 -0300

The present investigation deals with the tutoring process. Guidance and tutorial action constitute one of the most powerful instruments to facilitate the transition to university and promote students in Higher Education. Its objective was to describe the tutoring process in the Law specialty from the perspectives of tutors and students. It is approached from a descriptive and cross-sectional design, with a mixed analytical approach. The sample consisted of 100 students and 15 tutor teachers. The results reveal that both students and teachers are dissatisfied with the tutoring process because there are problems in relation to the organization of the tutorials, with reduced office hours, time incompatibility with other academic or non-academic activities, lack of presence of tutors in the corresponding schedules, little development of the tutorial, with some sessions at the beginning of the course, but a frequency and continuity less than desirable to respond to the needs of the students. It is concluded that the tutorial process is characterized by being unsystematic, unstable and disorganized. The personal area is the least oriented and the teachers argue that they do not have the necessary resources to be able to exercise them adequately.

Uma crítica à dissociação entre teoria e prática jurídica

Ramon Isaac Saldanha de Azevedo e Silva, Anderson Souza da Silva Lanzillo — Wed, 11 Dec 2024 00:00:00 -0300

This study examines the dichotomy between theory and practice in law, a topic debated by philosophers and jurists over time. The research focuses on the distinction between theoretical and practical knowledge, with the central question: “Is the dogmatics of legal science different from legal practice?”. Using a qualitative and hypothetical-deductive approach, the study investigates the (non)existence of minimal distinctions between theory and practice and their repercussions in law, as well as analyzing the relationship between the sources of law and this distinction. The initial hypothesis is that theory and practice are inseparable in law. The research highlights the importance of understanding how legal theory guides practice, emphasizing the need for the application of laws to be both rigorous and adaptable. The results indicate that the sources of law are predominantly dogmatic and that custom, although empirical, requires legal language to be effective. It is concluded that practice and theory are inseparable in law, as theory is the only one that produces legal effects. Any practice that disregards the sources of law is seen as a legal distortion.

Distribuição de emendas parlamentares em Universidades Federais Rurais (2016-2023)

Wed, 11 Dec 2024 00:00:00 -0300

Since 2015, the mandatory budget has made it compulsory to implement individual parliamentary amendments in the annual budget. These amendments, freely decided, can benefit entities of personal interest to parliamentarians. Despite criticism, they have been gaining ground and, with the 2016 tax regime, have become an additional source of funds for public institutions. Almost a decade after their implementation, the dynamics of the distribution of these resources have become a relevant field of study. However, few studies have analyzed how these amendments are allocated to universities, and even fewer studies have focused on the four existing rural federal universities. This study, of a descriptive nature, documentary type and mixed approach, analyzes how deputies and senators allocated individual amendments to these institutions between 2016 and 2023, in order to fill the gap identified. The main results show that there is a tendency to allocate funds to actions in the area of restructuring, expanding and modernizing universities and that, in some cases, the distribution of more funds through tax amendments is not so closely associated with the greater number of federal deputies per state. The research contributes to the advancement of reflections in the field of the mandatory budget and its relationship with higher education, suggesting new research agendas.

ADI Nº 5,595 AND THE DEFUNDING OF HEALTH

Vitor Comássio Paula Lima, Danilo Henrique Nunes, Sebastião Sérgio Silveira — Wed, 11 Dec 2024 00:00:00 -0300

The work investigates the underfunding of the Unified Health System and promotes the analysis of the Direct Action of Unconstitutionality nº 5.595, in addition to correlating the meta-principle of the Dignity of the Human Person, present in the ratio decidendi of the control action concentrated in comment. Using hypothetical-deductive and literature review methods, it brings to light historical and contemporary conceptual notions about the Right to Health as a constitutional commandment enshrining the Right to Life itself, both in terms of human rights and constitutional and infraconstitutional. The main objective is to analyze the reflections of this judgment as well as its practical effects on the effective right to health and on the implementation of public policies arising from it, provided by the State - here as a federative Entity in a broad sense, since the Union, Member States, Federal District and Municipalities, within the scope of their constitutional powers, must provide health care, one of the tripods of Social Security. In the end, it is concluded that the underfunding of the SUS by its own managers constitutes a serious obstacle to the effective exercise of the right to health and the right to life itself.

Recall brasileiro: uma análise pelo método do Direito Comparado

João Paulo Jacob — Wed, 11 Dec 2024 00:00:00 -0300

This article investigates the feasibility of implementing the recall mechanism in Brazil, using the comparative law method. By analyzing legal systems that already adopt recall, such as the United States and Latin American countries, it aims to understand the implications, advantages, and challenges of its application in the Brazilian context. The main objective of this article is to assess the feasibility of implementing the recall mechanism in the Brazilian political system. Specifically, it seeks to: Analyze international experiences of recall and their outcomes; Identify the legal and political challenges for the implementation of recall in Brazil; Evaluate the potential consequences of adopting recall for political stability and governance in Brazil. The research adopts the comparative law method, through which legislation, processes, and recall cases in different jurisdictions are analyzed. The selection of countries for comparison is based on the diversity of political systems and the consolidated presence of recall in their democratic structure. Results indicate that recall could strengthen democracy in Brazil but faces obstacles such as constitutional reforms, partisan use, and the risk of political instability. Its effectiveness depends on integration into the political culture.

Voto adolescente: exame da campanha de incentivo ao alistamento eleitoral do TRE/SC (2022)

Cristiano Lange dos Santos, André Viana Custódio — Wed, 11 Dec 2024 00:00:00 -0300

The theme of the article is adolescent participation in Brazilian electoral processes and the incentive policies developed by the Electoral Justice, in particular the Superior Electoral Court (TSE) and the Santa Catarina Regional Electoral Court (TRE/SC). The general objective is to examine the transformations in the participation of Brazilian adolescents in the electoral process. The specific objectives are: i) to examine how public institutions act to encourage the participation of adolescents in electoral processes; ii) to verify how the incentive programs and campaigns developed by the Superior Electoral Court have impacted on the behavior of teenagers in the issuance of the electoral title and its impacts on the electoral abstention rates, in particular, the program “My first title #Boravotar” developed by the Regional Electoral Court (TRE/SC) of Santa Catarina.

Derrogação contextual: comentário histórico-jurídico à tendência de revisão da Súmula 347 pelo Supremo Tribunal Federal

Walter Guandalini Junior — Wed, 11 Dec 2024 00:00:00 -0300

From the beginning of the century, Brazilian Supreme Court has been revising its Precedent 347, which assured Brazilian Courts of Auditors the competence for constitutionality review. The precedent remains valid and in force, which indicates there is no doubt as to the constitutionality of the assigned competence. However, in the last twenty years several Supreme Court decisions have been questioning the precedent’s scope, raising doubts on its subsistence under the new constitutional regime. Adopting an historical approach, this paper supports the hypothesis that the debate’s very emergence is the result of a contextual derogation: as legal mentality is transformed by the historical process, so it leads to the Precedent’s implicit derogation, due to its incompatibility with the new emerging legal order.

THE CONTROL OF CONVENCIONALITY AS AN INSTRUMENT FOR PROTECTING THE HUMAN RIGHTS INDIGENOUS

Wed, 11 Dec 2024 00:00:00 -0300

The objective of this research was to analyze the control of conventionality as an instrument for protecting the human rights of indigenous peoples, using as a paradigm the decision against Brazil in the Xucuru case, Brazil's first conviction in the Inter-American Court (IACHR) forviolation of indigenous rights, in 2018, in parallel with the health crisis of the Yanomami people worsened by illegal mining. The methodologies used in this research were the deductive and qualitative methods. As for the means, the research was bibliographic, using doctrine, legislation and jurisprudence. It was concluded that the control of conventionality can be an important tool in defense against the violation of the fundamental rights, setout nationaland internationally, in favor of originary native peoples. However, the actual confrontation of this issue requires wider comprehension of the historical, political, social and cultural contexts behind those campaigns, as its perpasses through the necessity of creation of more effective assurance mechanisms for the Courts, such as the launch of public policies versing about more intense surveillance, so avoiding future violations by the States Parties.

¿Existe un derecho subjetivo a la vivienda en el Derecho Español?

José Manuel Busto Lago — Wed, 11 Dec 2024 00:00:00 -0300

The article critically analyzes the new regulatory context of housing rights in Spain, with special attention to Law 12/2023. The text examines whether this law effectively establishes a subjective right to housing, concluding that it does not directly configure such a right. The study highlights the law's approach to real estate property, emphasizing its statutory conception and the focus on the social function of housing. The analysis delves into the basic conditions established by the norm and its relationship with constitutional duties linked to housing. The study proposes an innovative perspective on how Spanish legislation understands and regulates the right to housing, questioning the actual scope of legal guarantees and emphasizing structural and social aspects of housing property, without configuring a direct individual subjective right.

Patrimônio rural em afetação: instituição sobre a pequena propriedade rural não explorada para subsistência familiar

Henrique Rodrigues Medeiros, Carolina Merida, Fabrício Muraro Novais — Wed, 11 Dec 2024 00:00:00 -0300

Abstract: The theme of the research is Rural Heritage in Affectation - PRA. The research problem consists of answering how to make the institution of the PRA compatible with small rural properties. Law no. 13,986/2020 was designed as a legislative framework that would bring benefits to rural producers, through credit facilitation and reduction in interest rates. The PRA was created as a new type of guarantee to encourage credit operations, but rural producers with areas of up to 4 fiscal modules were not covered by the use of this instrument. The general objective of the research is to investigate to what extent the institution of PRA to properties with an area of up to 4 fiscal modules continues to provide legal security to the creditor. The research method is deductive and the technique is bibliographical research. The results indicate that the prohibition of the PRA institution on small rural properties seeks to guarantee legal security for the creditor so as not to be surprised by a possible declaration of unseizability, hindering the expropriation of the property in case of default. It turns out that unseizability must be considered not only due to the size of the area, but also evaluates the property's exploitation regime.

Keywords: Affected Rural Heritage; Small Rural Property; Agricultural Law.

THE CONCEPT OF ENTERPRISE IN THE DIGITALIZED SOCIETY: REFERENCE TO FINTECH’S

Fábio da Silva Veiga — Wed, 11 Dec 2024 00:00:00 -0300

The study aims to present a comprehensive conceptualization of enterprises within the digitalized society, demonstrating that corporations' transcendence beyond technological utilization in goods and services provisioning constitutes a characteristic that assimilates novel concepts while remaining intrinsically dependent on classical juridical frameworks for corporate regulation. As an illustrative example of this business domain transcendence, the research introduces the contemporary significance of the term "financial technology" (FinTech) within financial markets and industry, exploring its origins and transformative potential for the financial system. Subsequently, the study explicates the driving and constraining factors influencing FinTech phenomenon growth, critically examining recent global studies regarding the magnitude and implications of this expansion, alongside its impact on financial markets and consumer behaviors within traditional banking activities, with specific considerations for the Spanish context, particularly focusing on potential [self]regulatory models.

One step behind: thinking about the transmission of power in family share companies

Alexandre de Soveral Martins — Wed, 11 Dec 2024 00:00:00 -0300

It is possible to plan power transition in family companies. That may be the best way of choosing the most prepared to continue the business, and it will allow a softer transition in order to avoid unnecessary value destruction. This article focuses on some of the tools that Portuguese Company Law provides to achieve those goals.

Staff

REJUR — Wed, 11 Dec 2024 00:00:00 -0300

Editorial Note

Marcelo Lauar Leite — Wed, 11 Dec 2024 00:00:00 -0300