Atuação: Revista Jurídica do Ministério Público Catarinense

Collective Civil Procedure: the defense of diffuse rights in Brazilian Law

Marcelo Buzaglo Dantas — Mon, 18 Dec 2023 15:53:05 +0000

About constitucional facts

Luiz Guilherme Marinoni — Mon, 18 Dec 2023 15:53:47 +0000

The article argues that the control of constitutionality is not restricted to analyzing the compatibility between a rule and the Constitution. Rather, it is essential to analyze whether the facts assumed or estimated by the law correspond to reality. The influence of facts on constitutionality is even more evident when interpreting the Constitution based on vague rules or open clauses, which often leads to the formation of precedents based on facts. The legitimacy of interpretive decisions and constitutional precedents depends on the proper clarification and justification of facts. The article contends that in a system where the Constitution requires judicial protection of fundamental rights, ignoring facts is unacceptable. Therefore, the author calls for greater attention to constitutional facts in both doctrine and courts. The identification, discussion, and clarification of constitutional facts are crucial for the formation of binding interpretations and the establishment of new constitutional rights.

Actions on the right to health claims collective treatment: inspirations in the US law

Tiago do Carmo Martins, Gilson Jacobsen — Mon, 18 Dec 2023 16:13:11 +0000

The Right to Health, a type of mass litigation, challenges the Brazilian judiciary branch to take a broader look at the problem, to achieve a more efficient jurisdictional provision with an adequate response to the problem of judicialization of Health. New postures are necessary, by using new procedural tools, as employed in Comparative Law in the face of complex and repetitive litigation. The Justice Centers 4.0 can increase the activity of the Judiciary in dealing with issues related to the Right to Health, as they allow, through the centralization of causes, specialization, efficiency and quality gain.

Collective procedural law and structural injunction: adaptation ways

Virginia Telles Schiavo Wrubel — Mon, 18 Dec 2023 16:23:31 +0000

This article arises from the need to update the civil procedure, in a neoconstitutional context, to deal with new forms of litigation in contemporary society. Based on theoretical-descriptive research, the aim was to develop a perspective of dialogue for the inclusion of the structural process model in the Brazilian collective microsystem. It was concluded that the structural process allows for reforming bureaucratic structures that violate fundamental rights and, due to its characteristics, manifests mainly through collective actions. However, considering the current collective microsystem, adequacy is necessary in terms of res judicata, legitimacy, participation and even classification of transindividual rights for structural demands.

Overturning precedents in environmental law: Parameters for overcoming judicial precedents.

Rudson Marcos — Mon, 18 Dec 2023 16:36:06 +0000

The protection of natural resources requires the permanent search for mechanisms that provide multifaceted ways to effectively achieve environmental preservation, on a global scale, given the dynamics of the forms of exploitation of natural heritage. This study is situated in the field of progress in environmental procedural law and proposes to investigate decision-making mechanisms, indicating the best available technique, as a condition of possibility for overcoming judicial precedent that proves to be incompatible with the parameters of Sustainability. The study focuses on the analysis of the theory of Judicial Precedent, in the context of globalized transjudicialism, with emphasis on the impacts of the adoption of Judicial Precedent in the text of the Brazilian Civil Procedure Code of 2015, initiating the approximation of Civil Law and Common Law traditions.

The structural process as a possible solution instrument for irradiated collective disputes

Denise Schmitt Siqueira Garcia, Breno Azevedo Lima — Mon, 18 Dec 2023 16:51:45 +0000

This article aims to work with the structural process as a possible settlement instrument for collective litigation, considering the need to seek procedural mechanisms capable of conferring substantial effectiveness to judicial decisions that deal with multipolar demands and transindividual impact. Therefore, this article discusses if the possibilities of structuring decisions and formal sources aimed at bringing better solutions to collective demands. The overall objective is to shed light to problems brought about by the collectivization of demands within a model aimed at individual adversarial conflicts and the possibility of solving conflicts of this nature within the structural process. The specific objectives are limited to: understand the current biocentric procedural structure and its non-appropriation in view of the complexity of transindividual disputes; identify the problems that affect the current structure of the Brazilian collective process and present the doctrinal position according to potential solutions; verify which legislative instruments are applied to collective proceedings and their effectiveness; to analyze the applicability of the structural process as a possible instrument for solving irradiated collective disputes, i.e., conflicts of high conflict and complexity. Regarding methodology, it is a research with a qualitative approach of the bibliographical type. This article has the expected result of proving that the structural process can serve as a tool capable of giving greater effectiveness to judicial decisions dealing with processes that involve irradiated transindividual rights, based on fundamental constitutional procedural rights, judicial activism, and democratic and empathetic participation of all potential impacted by the court decision through self-composition.

Impossibility of intercepting Whatsapp application messages, sovereignty and transnationality

Marcio Gai Veiga — Mon, 18 Dec 2023 17:06:28 +0000

This article addresses the problem involving the obstacle that authorities have faced, in criminal investigations, in intercepting, with a court order, and in real time, messaging applications, a means of communication widely disseminated worldwide. This article aims to discuss democracy, transnationality and the aspects of the problem related to the unfeasibility of real-time interception of messages exchanged by messaging applications. As for the methodology used, the deductive method was used, so that, based on a general overview of the aspects of the issue, a conclusion could be obtained in the end. The wide use of messaging applications has proven to be useful for committing crimes, without them being able to be intercepted, with a court order, by the authorities. In view of economic interests, and under the argument that the encryption used in most of these applications would not allow it, the companies that own the technologies have not submitted themselves to the internal regulations of each country, making the interception of such messages unfeasible, even in the face of an order court ordering such action. This way of acting, characteristic of transnationality, has offended the sovereignty of most countries in the world.

Notes about prescription

Felipe Bizinoto Soares de Pádua — Mon, 18 Dec 2023 17:15:52 +0000

The Brazilian Civil Code of 2002 allows jurists to distinguish prescription from several other juridical institutes related to the effects of time on juridical relationships. The study of prescription is deepened with investigations about its definition, juridical nature, initial counting term, and differences in relation to institutes of both Substantive Law (usucapion and decadence) and Procedural Law (peremption and preclusion).

Criminal non-prosecution agreement: an analysis of the formal and circumstanced confession of the defendant

Felipe Augusto Rodrigues Ambrosio, Eduardo Ferreira Migliorini — Mon, 18 Dec 2023 17:24:43 +0000

This research inquires the recent enactment of the non-prosecution agreement, introduced in the Brazilian legal system by Law No. 13,964/19. This rule established new guidelines in the conduct of criminal negotiation justice, as an alternative to the merely punitive state model, promoting less bureaucracy and more efficiency in criminal protection. Being a recent institute with wide application, its analysis becomes essential, especially regarding the disagreements inherent to its legal requirements. Thus, in the first part of the work, the current Brazilian constitutional legal scenario is analyzed. Then, the study analyzes the figure of the ANPP, and the need for formal confession. Finally, the probative value of the confession made in the agreement is verified. In this sense, the research object of this work will be the requirement of a formal and detailed confession of the accused to offer the agreement by the Public Prosecutor, and the possible affront to the principle of non-self-incrimination, concluding that such a requirement is possible, given the nature of real benefit, subject to the discretion of the accusing body. The work uses a monographic approach, and as research technique, bibliographic and legislative documentation.