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Author: Daniel Ustarroz
Publisher: Livraria do Advogado Editora
ISBN: 8573500786
Category : Law
Languages : pt-BR
Pages : 102
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Book Description
As Emendas constitucionais tem alterado sensivelmente o texto originário da Constituição Brasileira, prejudicando os ideais de estabilidade e de segurança, e, com relação ao conteúdo processual da Constituição, nota-se que, ao menos o regramento básico se mantém constante. Paralelamente, gravitam em torno da Constituição, centenas de leis ordinárias o que gera reiterados conflitos entre o novo e o antigo, ou entre o estável que brota da adesão social e o volátil, produzido pela episódica maioria legislativa. A presente obra, objetiva analisar alguns aspectos do ativismo constitucional, identificando projeções das normas constitucionais na ciência processual.
Author: Daniel Ustarroz
Publisher: Livraria do Advogado Editora
ISBN: 8573500786
Category : Law
Languages : pt-BR
Pages : 102
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Book Description
As Emendas constitucionais tem alterado sensivelmente o texto originário da Constituição Brasileira, prejudicando os ideais de estabilidade e de segurança, e, com relação ao conteúdo processual da Constituição, nota-se que, ao menos o regramento básico se mantém constante. Paralelamente, gravitam em torno da Constituição, centenas de leis ordinárias o que gera reiterados conflitos entre o novo e o antigo, ou entre o estável que brota da adesão social e o volátil, produzido pela episódica maioria legislativa. A presente obra, objetiva analisar alguns aspectos do ativismo constitucional, identificando projeções das normas constitucionais na ciência processual.
Author: Sergio Gilberto Porto
Publisher:
ISBN: 9788573486186
Category :
Languages : pt-BR
Pages : 133
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Book Description
A presente obra, objetiva analisar alguns aspectos do ativismo constitucional, identificando projeções das normas constitucionais na ciência processual.
Author: Rubens Becak
Publisher: Rowman & Littlefield
ISBN: 1793623708
Category : Law
Languages : en
Pages : 285
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Book Description
The Unwritten Brazilian Constitution offers an unexplored topic outside Portuguese language: the leading cases on human rights in the Brazilian Supreme Court (Supremo Tribunal Federal – STF). The Brazilian Constitution of 1988 represents an institutional framework able to restructure the relationship between the powers after the military dictatorship. The constituents drafted the Brazilian Constitution in order to set an extensive system of judicial protection for fundamental rights, by means of several instruments that have strengthened access to the Judiciary. Because the Brazilian Constitution has an extensive list of fundamental rights, the STF was called to interpret them several times and it developed an unwritten understanding of these fundamental rights. These decisions are not available to the international community since they are not translated to English. Based on this gap, this original book illustrates the main rulings on human rights analyzed by great scholars in Brazil. The text presents a deep discussion regarding the characteristics of the cases and demonstrates how the STF has built the legal arguments to interpret the extension of the fundamental rights.
Author: Alexandre Dias Pereira
Publisher: Kluwer Law International B.V.
ISBN: 940352278X
Category : Law
Languages : en
Pages : 174
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Book Description
Derived from the renowned multi-volume International Encyclopaedia of Laws, this convenient volume provides comprehensive analysis of the legislation and rules that determine civil procedure and practice in Portugal. Lawyers who handle transnational matters will appreciate the book’s clear explanation of distinct terminology and application of rules. The structure follows the classical chapters of a handbook on civil procedure: beginning with the judicial organization of the courts, jurisdiction issues, a discussion of the various actions and claims, and then moving to a review of the proceedings as such. These general chapters are followed by a discussion of the incidents during proceedings, the legal aid and legal costs, and the regulation of evidence. There are chapters on seizure for security and enforcement of judgments, and a final section on alternative dispute resolution. Facts are presented in such a way that readers who are unfamiliar with specific terms and concepts in varying contexts will fully grasp their meaning and significance. Succinct, scholarly, and practical, this book will prove a valuable time-saving tool for business and legal professionals alike. Lawyers representing parties with interests in Portugal will welcome this very useful guide, and academics and researchers will appreciate its comparative value as a contribution to the study of civil procedure in the international context.
Author: Eva Steiner
Publisher: Springer
ISBN: 331916175X
Category : Law
Languages : en
Pages : 383
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Book Description
This work deals with the temporal effect of judicial decisions and more specifically, with the hardship caused by the retroactive operation of overruling decisions. By means of a jurisprudential and comparative analysis, the book explores several issues created by the overruling of earlier decisions. Overruling of earlier decisions, when it occurs, operates retrospectively with the effect that it infringes the principle of legal certainty through upsetting any previous arrangements made by a party to a case under long standing precedents established previously by the courts. On this account, in the recent past, a number of jurisdictions have had to deal with the prospect of introducing in their own systems the well-established US practice of prospective overruling whereby the court may announce in advance that it will change the relevant rule or interpretation of the rule but only for future cases. However, adopting prospective overruling raises a series of issues mainly related to the constitutional limits of the judicial function coupled by the practical difficulties attendant upon such a practice. This book answers a number of the questions raised by this practice. It makes use of the great reservoir of foreign legal experience that furnishes theoretical and practical ideas from which national judges may draw their knowledge and inspiration in order to be able to advise a rational method of dealing with time when they give their decisions.
Author: Fabio Carvalho de Alvarenga Peixoto
Publisher: Fabio Carvalho de Alvarenga Peixoto
ISBN: 6500865375
Category : Law
Languages : en
Pages : 303
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Book Description
The book is an adaptation of part of the author's PhD thesis, which won the international prize Prémio FIBE, and was voted one of the three best in Brazil, in the field of Law, in 2023. It deals with the history of the notion of abuse of rights, in its two traditions: the Franco-Belgian (abus de droit) and the German (unzulässige Rechtsausübung). It also presents the discourse of abuse of rights with a 'shortcut' function. Finally, it places the scientific formulation of groups of cases as necessary for the proper use of the abuse of rights discourse. Fabio Carvalho de Alvarenga Peixoto PhD in Constitutional Law (Universidade de Fortaleza - Brazil). State Attorney. Private lawyer. Winner of the international prize Prémio FIBE, and of an honorable mention in the Capes (Brazilian Ministry of Education) PhD Thesis Award 2023. INTRODUCTION 1 THE BEGINNING OF THE HISTORIES OF ABUSE OF RIGHTS 2 THE GENERAL CONCEPT OF ABUSE OF RIGHTS 2.1 Literature Admission of Abuse of Rights as an Atypical Unlawfulness 2.1.1 Unconscious Phase 2.1.2 Constructive Phase of Incipient Dogmatization 2.1.3 Constructive Phase of Peripheral Systematization 2.2 Delimitation of Abuse of Rights in the Face of Abuse (Misuse) of Power 2.3 Presuppositions of the Notion of Abuse of Rights 2.3.1 Permission Granted by ‘Abstract’ Interpretation of a Normative Text 2.3.2 Prohibition ‘Discovered’ by Judge, Outside the Limits of ‘Abstract’ Interpretation of Normative Text 3 THE FUNCTION OF THE NOTION OF ABUSE OF RIGHTS 3.1 Abuse of Rights as a “Gathering Concept” 3.2 Practical Indispensability of the Dogmatic Formulation of (Open) Groups of Cases for the Rational Application of the Prohibition of Abuse of Rights 3.3 Abuse of Rights as a “Shortcut” (which “can Slow You Down”) 4 THE TWO TRADITIONS OF PRIVATE LAW DOCTRINES OF ABUSE OF RIGHTS 4.1 The French-Belgian Tradition of Abus de Droit 4.1.1 Harmful Intent Approach 4.1.1.1 The Beginnings of the Abus de Droit Tradition 4.1.1.2 Unnecessary Dammage Approach 4.1.2 Deviation from the Economic and Social Purposes of Rights Approach 4.1.2.1 Louis Josserand’s Original Approach 4.1.2.2 Violation of Dominant Morality Approach 4.1.2.3 Reception in Germany by Wolfgang Siebert of the Deviation of Purpose Approach (Rechtsmißbrauch) and its Evolution into the Doctrine of Institutional Abuse (Institutioneller Rechtsmißbrauch) 4.1.2.4 Denial of the Axiological Fundament (‘Formal Axiologism’) Approach: Non-Replacing Overcoming 4.1.3 Disproportion between Advantages and Losses Approach 4.2 The German Tradition of Unzulässige Rechtsausübung 4.2.1 Prohibition of Chicanery Approach 4.2.2 Violation of Objective Good Faith Approach 4.2.3 Violation of Good Customs Approach 4.3 Excerpt: Germanophile Definitory Approach of Abuse of Rights as Violation of Principle 5 THE METHODICAL ISSUES NOT RESOLVED BY DOCTRINES OF ABUSE OF RIGHTS 5.1 The Importance of the Recognition of the Meta-Individual Function of Rights 5.2 Meta-Individual Function and Individual Function: Methodical Requirement of Sizing Criteria for Each Right 5.3 Limited Scope of the Objective Good Faith Approach 6 THE NEED FOR RATIONAL JUSTIFICATION OF THE IDENTIFICATION OF ABUSE OF RIGHT AS A MECHANISM FOR CONTROLLING JUDICIAL DISCRETION 6.1 Insufficiency of the Standard Theories of Legal Argumentation for Rational Justification of the Evaluation of Abuse of Rights 6.2 The Use of Dogmatically Formulated Groups of Cases for the Rational Justification of the evaluation of Abuse of Rights CONCLUSION REFERENCES
Author: Renata Furtado de Barros (Organizadora)
Publisher: Lulu.com
ISBN: 1105183327
Category :
Languages : pt-BR
Pages : 410
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Book Description
Author: Fabio Carvalho de Alvarenga Peixoto
Publisher: Fabio Carvalho de Alvarenga Peixoto
ISBN: 650086817X
Category : Law
Languages : en
Pages : 400
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Book Description
The book is an adaptation of part of the author's PhD thesis, which won the international prize Prémio FIBE, and was voted one of the three best in Brazil, in the field of Law, in 2023. It addresses the appropriation of the private law notion of abuse of rights by the theory of fundamental rights. It also presents guidelines for an appropriate use of the discourse of abuse of fundamental rights (highly dependent on a Dogmatics of scope, approached according to a model of groups of cases). Fabio Carvalho de Alvarenga Peixoto PhD in Constitutional Law (Universidade de Fortaleza - Brazil). State Attorney. Private lawyer. Winner of the international prize Prémio FIBE, and of an honorable mention in the Capes (Brazilian Ministry of Education) PhD Thesis Award 2023. INTRODUCTION 1 THE GENERAL NOTION OF ABUSE OF FUNDAMENTAL RIGHTS 1.1 Admission by Literature of the Abuse of Fundamental Rights 1.1.1 Unconscious phase 1.1.2 Constructive Phase of Incipient Dogmatization 1.1.3 Constructive Phase of Peripheral Systematization 1.2 Delimitation of the Abuse of Fundamental Rights in the Face of the Verwirkung of Fundamental Rights 1.3 Presuppositions of the Notion of Abuse of Fundamental Rights 1.3.1 Fundamental Right Permission Granted by ‘Abstract’ Interpretation of the Constitutional (or with Constitutional Status) Text or of a Judicial Decision Interpreting the Constitution 1.3.2 Prohibition ‘Discovered’ by Judge, Outside the Limits of ‘Abstract’ Interpretation of the Normative Text 2 FROM PRIVATE LAW DOCTRINES OF ABUSE OF RIGHTS TO A THEORY OF ABUSE OF FUNDAMENTAL RIGHTS 2.1 The Effectiveness of Fundamental Rights Between Private Individuals (Drittwirkung) as a Bridge Between Private Law Doctrines of Abuse of Rights and the Theory of Fundamental Rights 2.2 Problems of Using the Approaches of the Private Law Doctrines of Abuse of Rights in the Theory of Fundamental Rights 2.2.1 The Problem of the Controllability of State Interventions in Fundamental Rights 2.2.1.1 Creation of Law Outside the Limits of the Normative Text 2.2.1.2 Lack of Control Parameters of the Definitory Approaches 2.2.2 The Problem of the Risk of Eliminating the Individual Function of the Fundamental Right 2.2.3 The Problem of the Confusion with the Dogmatics of the Limits of Fundamental Rights 2.2.3.1 Dogmatic Autonomy of Abuse of Fundamental Rights vis-à-vis the Doctrines of Limits of Fundamental Rights 2.2.3.2 The Relation Between Abuse of Fundamental Rights and Dogmatic Conceptions of the Broadness of the Tatbestände of Fundamental Rights 3 CONTROL OF THE RATIONALITY OF THE DISCOURSE OF ABUSE OF FUNDAMENTAL RIGHTS AS A JUSTIFICATORY “SHORTCUT” 3.1 Needless for a Constitutional General Clause to Restrain Abuse of Fundamental Rights 3.2 The Need for a Singular Dogmatics 3.3 Identification of the Abuse of Fundamental Rights as a Task of Peripheral Systematization Grounded on Concrete Evaluations 4 UNACCEPTABLE APPROACHES TO THE ABUSE OF FUNDAMENTAL RIGHTS 4.1 Abuse of Fundamental Rights Without Parameters 4.2 Abuse of Fundamental Rights as Inadmissible Form of Exercise 4.3 Abuse of Fundamental Rights as Synonym for Exceeding a Limit 4.4 Abuse of Fundamental Rights as Typical Unlawfulness 4.5 Abuse of Fundamental Rights as Fraud Against the Law 4.6 Abuse of Fundamental Rights as Unreasonableness 4.7 Abuse of Fundamental Rights as Result of Alexyan Balancing 4.8 Abuse of Fundamental Rights as Disproportionality (Abuse of Fundamental Rights as Result of Means-End Balancing) 5 ACCEPTABLE APPROACHES TO THE ABUSE OF FUNDAMENTAL RIGHTS 5.1 Inadmissible Harmful Intent 5.2 Dogmatization of the Normative Scope 5.2.1 Direct Dogmatization 5.2.2 Indirect Dogmatization 5.3 Violation of Objective Good Faith 5.4 Violation of Good Customs 6 GROUPS OF ABUSE OF FUNDAMENTAL RIGHTS CASES AS LIMITS OF THE LIMITS CONCLUSION
Author: Peter C.H. Chan
Publisher: Springer Nature
ISBN: 9813345128
Category : Law
Languages : en
Pages : 204
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Book Description
The information age provides novel tools for case management. While technology plays a crucial role, the way in which courts are structured is still critical in ensuring effective case management. The correlation between court structure and case management is a pivotal topic. The existing debate concentrates predominantly on the micro and case-specific aspects of case management, without further inquiry into the relationship between court structure, court management, and case management. The contributions within this volume fill this gap from a comparative perspective, undertaking a macro/structural and sub-macro perspective of procedure and case management.
Author: Richard Pierre Claude
Publisher: University of Pennsylvania Press
ISBN: 9780812236798
Category : Business & Economics
Languages : en
Pages : 292
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Book Description
5 Health and Medical Ethics
