Mestrado em Direito, Políticas Públicas e Desenvolvimento Regional

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Navegando Mestrado em Direito, Políticas Públicas e Desenvolvimento Regional por Autor "Araújo, José Henrique Mouta"

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    A tutela provisória de urgência ambiental: uma leitura a partir da análise econômica do direito (AED)
    (Centro Universitário do Estado do Pará, 2023) Farache, Jacob Arnaldo Campos; Dias, Jean Carlos; http://lattes.cnpq.br/3343295176890460; Araújo, José Henrique Mouta; http://lattes.cnpq.br/0717263241559819; Silva, Arthur Laércio Homci da Costa; http://lattes.cnpq.br/5467964111383727
    The Brazilian State, aligned with the world scenario, has been evolving normatively for environmental protection purposes. Following this line, the Law itself has been recognizing and expanding the scope of action of one of its most recent specialized branches: the environmental one. Analyzing this role of Environmental Law, it is observed that it has strong links with another social science: economics. They are branches of human knowledge that aim to regulate or analyze, depending on each one, precisely the economic appropriation of environmental goods, taking into account the sustainability of these resources and the economic and social development of society. This connection between these fields of human knowledge is precisely the scope of the present study. Indeed, it is not only Law that approaches Economics with the emergence of specialized branches, but it is also the latter that approaches the former with the expansion of a specific field of study: the Economic Analysis of Law (AED). In this sense, this research proposes the following problem for analysis: “Under the lens of the economic analysis of law, it is possible to mitigate the requirement of the danger of delay (“periculum in mora”) for granting provisional environmental protection as an instrument of protection to a balanced environment for present and future generations? In order to respond to the problem raised, the specific objectives are: a) To briefly present the institute of provisional guardianship, in order to subsequently verify how it can be applied in environmental demands, considering the nature of the right involved (diffuse ) and the principles governing this specialized branch of law; b) Present the Economic Analysis of Law (AED) and its tools as an instrument for an analysis of the practical consequences of preliminary injunctions issued in environmental claims; c) Evaluate the pragmatic approach to law, in particular, highlighting the role of a pragmatist judge in the contemporary risk society, based on the analysis of 4 (four) judgments of the Federal Supreme Court (STF) that involve environmental issues and the concession or not of provisional environmental protections. As a result, it is understood that the relationship between the AED and the civil procedure allows for a wide range of research, both because it is still a legal line of thought in the consolidation phase in the Brazilian territory and because a society that assumes more and more risks needs of a right that is guided by pragmatic judicial decisions able to analyze the behavior of its agents and, above all, to control conducts that are harmful to the entire community. In environmental law, this is even more relevant, since it covers the protection of an intergenerational right.
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    O controle judicial do incidente de resolução de demandas repetitivas: reflexos perante a administração pública e um novo padrão de relação entre os poderes no constitucionalismo brasileiro do século XXI
    (Centro Universitário do Estado do Pará, 2017-08-25) Neves, Felipe Portella; Araújo, José Henrique Mouta; Góes, Gisele Santos Fernandes; Dias, Jean Carlos
    This research intends to analyze the influence of the decision of the Group Order Litigation, created by the Civil Litigation Code of 2015, over the public administration, mode specifically over the administrative bodies, organs and regulatory agencies that are affected by the formation of the legal thesis fixated in the respective incident, according to article 985, paragraph two of the Civil Litigation Code of 2015. With the inefficiency of the State to fulfill the functions incumbent on it, there is a perceptible increase in the judicialization, in which increasingly important issues are being decided by the Judiciary, especially when the legislature and executive cease to act or act unduly. On the other hand, the effect of the judicialization has generated the massification of conflicts, which generated the need to recognize rights with a predominantly collective dimension to contribute mainly to the treatment of the dissemination of individualized rights, which have homogeneity traits among them. However, the work will demonstrate that the collective mechanisms created by the legislations were insufficient to combat mass litigation of a homogeneous nature, failing to contain the multiplication of actions promoted in the judiciary, especially those originated by the same legal-factual question. Therefore, it was necessary, under the laws of Germany and England, to create, through the Civil Procedure Code (Law no. 13.105 / 15), the Incident of Resolution of Repetitive Demands to facilitate the processing and judgment of mass demands properly. This procedural instrument, however, because it has a strong binding character, before the judiciary and the public administration, has been questioned about the possible violation of the principle of separation of powers. In spite of doubts about its constitutionality, the present work will demonstrate that the incident seeks to break the traditional paradigm of separation of powers, based on the premises of Montesquieu, in as much as it proposes to achieve an integration between the powers (Legislative, Executive and Judiciary), through conciliation, communication and cooperation.
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    Igualdade formal e segurança jurídica nas decisões judiciais em ações coletivas para fornecimento de medicamentos: um estudo de casos da Seção Judiciária Federal do Estado do Pará
    (Centro Universitário do Estado do Pará, 2014-11-28) Pereira , Leonardo Fadul; Dias, Jean Carlos; Araújo, José Henrique Mouta; http://lattes.cnpq.br/0717263241559819; Silva, Beclaute Oliveira; http://lattes.cnpq.br/2567266014708590
    The social rights are in the 1988 Constitution and they are fundamentally ensured by the positive provision and the relation to the constitutional value and objectives to attend the human dignity principle. Formal equality as a constitutional value must be the way to accomplish social rights by the Government. When individuals are of the same judicial position, they must avoid unequal treatment. Public health is a citizen right and it is necessary for a good life, which includes medicament treatment. It is essential for the human cure and recovery to be offered by the Government as a social right obligation. The present study attempts to demonstrate the unequal treatment between the individual and the collective in some judicials decisions in medicaments class action in the Federal Judiciary Section of the State of Para. The technical for this research were to study cases from this particularly Federal Justice that involved medicaments class action during the years of 2011 through 2014. The results brought that the judicials decisions researched partially violated the fundamental social right to remedy assistance. In conclusion, from the point of view of the judicials decisions balance, the social fundamental right to remedy assistance were partially respected when provided it to an individual, but not respected this right when did not provided it to the collective, according to the constitutional positive prescription about the fundamentals rights.
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    O IRDR como política pública judiciária: a proteção ao princípio da igualdade a partir da adequada representação
    (Centro Universitário do Estado do Pará, 2018-02-05) Menezes, André Beckmann de Castro; Araújo, José Henrique Mouta; Dias, Jean Carlos; Guedes, Jefferson Carlos Carús
    The incident of resolution of repetitive demands (IRDR) was created by the Legislative Branch as a judicial public policy, aiming to reduce the number of lawsuits in process, directly reaching the repetitive issues arising mainly from mass legal relations. Its foundations are the constitutional principles of celerity (efficiency), legal security (predictability) and equality (uniformity of decisions). Despite being a consequentialist instrument, the IRDR is an innovative Brazilian creation, inspired by several foreign institutes, that aims at the establishment of legal theses on controversial issues to guarantee the constitutional principle of material equality. The same jurisdictional provision for parties in identical factual-legal situations is a consequence of the application of material equality. The different procedural treatment given to all the subjects affected by the uniformity of the legal theme also stems from the same principle. Because it has the nature of a repetitive collective process, its rules need to be understood differently from those applicable to the traditional individual process. The re-signification of the principle of equality, therefore, was made based on Marcelo Neves’ theory of circularity between principles and rules, also absorbing the theory of systems of Niklas Luhman. The self-referential legal system, limited by the Federal Constitution, allows the principle (equality) to guide the norms (IRDR) and, at the same time, to receive its meaning. The juridical system, at the same time, heteroreferent, also allows the principle to be explained by external values (contingencies) of the surrounding world (public policies). This understanding requires the applicator of the norm to take some cautions already authorized in the system, especially with the publicization and with the choice of model cases, in order to provide adequate representation. Comparative Law is an important source of evolution in the act of processing IRDR in protection of material equality.
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    O incidente de resolução de demandas repetitivas e a atuação das agências reguladoras: eficácia e impactos jurídicos
    (Centro Universitário do Estado do Pará, 2023) Santos, Talita Danielle Fialho Messias dos; Dias, Jean Carlos; http://lattes.cnpq.br/3343295176890460; Araújo, José Henrique Mouta; http://lattes.cnpq.br/0717263241559819; Góes, Gisele Santos Fernandes; http://lattes.cnpq.br/1305423832262115
    This master's thesis proposes a study on the impact of the court decisions made in the context of an incident of resolution of repetitive demands (IRDR) on the regulatory agencies, according to § 2o, of art. 985, of the Civil Procedure Code. It is a practical research, with a qualitative approach, having as methodological procedures the bibliographical and documental review. Under the premises of the theory of law, the research had its foundations based on modern legal positivism, having as a theoretical reference the North American author Ronald Dworkin. Regarding the civil procedural aspect, the main authors that served as the basis for the research were Paulo Sarno Braga e Rafael Alexandria de Oliveira, Sofia Orberg Temer e Thomas da Rosa de Bustamante. This paper seeks an investigation into the normative force of judicial precedents, especially the IRDR, given the possibility of the incident projecting its effectiveness to regulatory agencies, according to § 2o of art. 985, of the Civil Procedure Code. The issue is relevant given that IRDR is still a novelty in the legal system, in addition to the fact that the legislator has left gaps in its regulation, raising doubts among law enforcers, with the need to unify the understanding on the subject. To facilitate this research, a case study was used (IRDR n. 0801251-63.2017.8.14.0000 of the Court of Justice of Pará, that questions the fairness of the collection of unregistered consumption of past period by Equatorial (formerly Celpa). Finally, it was found that judicial precedents have normativity, which, however, may vary in effectiveness depending on the type of precedent. In the specific case of the IRDR, although it has binding effectiveness within the Judiciary (horizontal and vertical), by express legal determination (art. 927, III, of the Civil Procedure Code), this effectiveness could not extend to regulatory agencies considering an analysis of law as integrity. Therefore, it is necessary to confer to § 2o of art. 985, of the Civil Procedure Code, an interpretation according to the Constitution and, by corollary, consider its effectiveness persuasive only.
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    Os precedentes judiciais como forma de superação da crise de tempestividade na prestação jurisdicional brasileira: em busca da razoável duração do processo
    (Centro Universitário do Estado do Pará, 2015-04-09) Pereira, Bernardo Augusto da Costa; Araújo, José Henrique Mouta; http://lattes.cnpq.br/0717263241559819; Dias, Jean Carlos; http://lattes.cnpq.br/3343295176890460; Góes , Gisele Santos Fernandes; http://lattes.cnpq.br/1305423832262115
    This study aims to demonstrate the relevance of judicial precedents to overcome the timing crisis in adjudication, by which the Brazilian Judiciary goes by. Therefore, the legal traditions of civil law and common law are briefly analyzed, with greater focus on the latter, in order to demonstrate the approach that occurs between such legal families, and that there are no barriers to the use of judicial precedents by affiliated countries to the Roman-Germanic tradition. It is also studied the theory of judicial precedents, being defended a hermeneutic and dialectical conception of these institutions, as well as favorable arguments for their use. In the same way, the essential elements for a proper understanding of the theory of judicial precedents, besides the revocation techniques, are target of specific analysis. The neoconstitutionalist and neoprocessualist conceptions that start to affect the Brazilian Judiciary after the advent of the Constitution of the Republic of 1988 are target of attention in the same way that the arguments against the adoption of judicial precedents in Brazilian law. Then, due to the expansion of techniques of judicial decision’s binding, understood as part of a public policy in favor of reasonable duration of the process, the institutes of binding summary, general repercussion and the New Code of Civil Procedure, with focus on the incident of resolution of repetitive demands, are object of careful study. Finally, in order to deepen the quality of application of judicial precedents in the Brazilian law, it is studied the theory of Ronald Dworkin, with greater focus on law as integrity. It is concluded that the judicial precedents, if well managed, are able to promote an increase in quality of judicial decisions, and also assist the Brazilian Judiciary to achieve the reasonable duration of the process and, hence, the due process of law.