Brazilian Superior Research Articles

A RESPONSABILIDADE SOLIDÁRIA DAS COOPERATIVAS QUE COMPÕEM O GRUPO UNIMED

As cooperativas médicas do grupo Unimed são hoje modalidade de grande expressão no mercado de assistência médica suplementar, pois reúnem o maior número de beneficiários e concentram o maior faturamento do setor. À luz de decisão do Superior Tribunal de Justiça (STJ), que reconheceu a responsabilidade solidária em relação a obrigações contratadas por qualquer empresa pertencente ao grupo Unimed, o presente artigo analisa argumentos e repercussões do julgado. O dever de transparência decorre do direito básico do consumidor de receber informações claras e adequadas sobre serviços e produtos comercializados. Já a boa-fé objetiva está ligada à lealdade que as partes devem manter em todas as fases da contratação, em respeito às legítimas expectativas criadas. Conclui-se que o posicionamento do STJ, pela responsabilidade solidária de todas as empresas do grupo Unimed, é um desfecho lógico e necessário.

Between privacy, freedom of information and freedom of expression: Is there a right to be forgotten in Brazil?

This article analyses the Brazilian legal framework regarding the protection of personal data and privacy, in order to assess whether or not there is a strong argument to support a right to be forgotten in Brazil, especially regarding queries in a search engine. To carry out this scrutiny, this article will analyse the constitutional provisions as well as other legal provisions regarding data protection and privacy, such as the Brazilian Consumer Code and the Marco Civil da Internet. Furthermore, this article also looks into some decisions of the Brazilian Superior Court of Justice regarding the ‘right to be forgotten’.

A audiência pública do TST sobre terceirização como espaço social de luta político-cognitiva

The Brazilian Superior Labour Court, by considering the existence in its scope of about 5,000resources discussing the legality of outsourcing, as well as thousands of other resources beingprocessed throughout the Brazilian Labor Courts, on unprecedented initiative, convened onaugust 9th, 2011, a Public Hearing to discuss outsourcing. Occurred on October 4th and 5th,2011, fifty-one speakers from various lines of thought were selected among lawyers, economists,sociologists, trade unionists, employers’representatives, parliamentarians and business managers,to talk in 15 minutes presentations, in order to express their arguments, positions and informationon the subject. Such an event aimed to help in providing, if not a definitive view, at least abetter view on the social, economic and political implications that outsourcing and its possibleextensions, may produce. Therefore, this article aims to examine such public audience as a socialcognitivespace for political struggles over the definition of the real. Which means, in this case,to comprehend the searching from TST for a line of understanding on the topic of outsourcing,from information, arguments, and placements brought by various social agents that were presentin the Public Hearing.

A jurisprudência dos tribunais superiores e o direito à saúde – evolução rumo à racionalidade

O direito à saúde tem sido objeto de intensa judicialização no Brasil, com um número crescente de ações ano a ano. Este cenário tem gerado debates acerca do alcance deste inquestionável direito fundamental e suas repercussões na administração judiciária e nos orçamentos públicos. O presente trabalho estuda a posição adotada pelo Supremo Tribunal Federal e pelo Superior Tribunal de Justiça acerca do direito à saúde, mediante análise da jurisprudência das duas cortes, classificando-a em fases distintas segundo critério material e cronológico. Em um primeiro momento, a jurisprudência negou a viabilidade judicial do direito à saúde. Depois, passou-se a uma etapa na qual o acesso às prestações materiais em saúde foi entendido praticamente como ilimitado. Atualmente, prevalece uma posição conciliadora entre as inadiáveis necessidades do cidadão em saúde pública e a observância da racionalidade das políticas públicas sanitárias, sem embargo da flexibilidade cabível em casos específicos.

Francisco de Assis Marques v Center Trading Indústria e Comércio Ltda – a case note regarding limited liability in Brazilian Law

This case note provides an objective notion regarding limited liability in Brazilian law. Francisco de Assis Marques v Center Trading Industria e Comercio Ltda is a recent case from February, 2013, decided by the Brazilian Supreme Federal Court. The case note is divided into five parts. The first part provides a notion about the Brazilian courts’ system and its decisions on limited liability. The second part presents the Brazilian Superior Labour Court’s position on this subject. The third part discusses the interpretation given on this issue by the Brazilian Superior Court of Justice regarding limited liability. In the fourth part the proper case study is developed, clarifying the facts involved, the Court’s decision and its effects. Finally, in the fifth part I present my conclusions linking this subject to the initiative of a new Brazilian Commercial Code, affirming that this important event may have a great efficacy not just by the means of well-drafted general rules but also as a great opportunity to the Brazilian legal community to unify its position about the matter, and to provide more legal certainty for investments in the country.

SOCIAL AND ORGANIZATIONAL IMPACTS OF THE ELECTRONIC PROCESSING SYSTEM OF THE BRAZILIAN SUPERIOR TRIBUNAL OF JUSTICE

This paper presents a study on the social and organizational impacts of the Electronic Processing System (EPS) implemented in 2008 by the Brazilian Superior Tribunal of Justice (STJ). This system is part of a wider transformation process involving the implementation of a new management model at the STJ. The theoretical framework is based on the Technology Enactment Theory and other studies on the role of technological innovations in public organizations (Fountain, 2005; Freitas, 2012). The main goal of the research is to identify the most significant factors facilitating or inhibiting the innovation adoption. Results show different impacts of the EPS on professional groups and organizations. Political, cultural and economic aspects influence stakeholders’ perceptions of the innovation, including its sustainability, time and costs savings that impact the rate of adoption and the realization of benefits both to users and the organization investing in its development.

A perda da chance na jurisprudência do Superior Tribunal de Justiça – os (des)caminhos de uma compreensão teórica

The article aims at demonstrating that, with the modification of the concept of wrongful damage in order to embrace not only the violation of subjective rights but also the injury caused to legitimate interests, the recognition of a new damage category, called the loss of chance, became possible. From this assumption, based on national and foreign doctrines (mainly French and Italian), it analyses the Brazilian Superior Court of Justice’s decisions concerning this issue that were the result of a search realized by the words “loss” and “chance”. For the purposes of the study, all decisions that the central problem was not directly concerned to the theory of loss of chance or it were related to medical liability have been eliminated from the sample. Because of that, the analysis is restricted to the decisions in which the classical loss of chance theory has been applied, meaning the cases in which there is a frustration of an aleatory process at the end of which there would be an advantage or the possibility to avoid a loss, but noboby will ever be capable of knowing the final result. This approach highlights, thus, how has been the theory acceptation in the Brazilian Superior Court of Justice and punctuates the successes and misconceptions of the comprehension and characterization of this new type of damage. Furthermore, it also demonstrates there is no concurrency in the Superior Court of Justice, whose decisions sometimes do not admit the compensation for the loss of chance; every now and then, although they recognize the loss of chance as a new type of damage, they characterize it as consequential damages or lost profits or, instead, only as aggregating the value of moral damage.

O RESP 1.159.242 – SP: A NECESSIDADE DE UM ESPAÇO DE "NÃO DIREITO" NA MODERNIDADE LÍQUIDA

O presente trabalho analisa criticamente a decisão do Superior Tribunal de Justiça (STJ) no âmbito do Recurso Especial (REsp) 1.159.242 – SP, em que um pai foi condenado a pagar R$ 200.000,00 (duzentos mil reais) à filha, em virtude de abandono afetivo. O julgamento, em abril de 2012, levantou discussão sobre a natureza jurídica do afeto no ordenamento jurídico pátrio, sendo o entendimento da corte passível de críticas sob diversos aspectos (doutrinário, jurisprudencial e sociológico). Sob o aspecto doutrinário, há o entendimento de que a natureza do afeto não admite o seu tratamento como um princípio jurídico, digno de indenização. Os Tribunais de Justiça de São Paulo e Minas Gerais, por sua vez, também não vêm seguindo o STJ após a decisão em comento, sob o fundamento de que não há, em tais situações, ato ilícito que enseje o dever de indenizar. De uma perspectiva crítico-sociológica, é possível questionar a decisão do STJ a partir da teoria desenvolvida por Bauman, segundo a qual estamos inseridos na denominada “modernidade líquida”, momento em que relacionamentos e sentimentos humanos vêm sendo reduzidos a dinheiro e consumo. Dos argumentos apresentados é possível concluir pela necessidade de existência de um espaço no qual a intervenção do Direito não seja viável, pela impossibilidade de solução dos conflitos e pela necessidade de preservação da autonomia, espaço denominado por Rodotà de “espaço do não direito”.

Contumácia e Revelia na Arbitragem

ABSTRACT: This article presents the main aspects of contumacy and default and its influence in the course of arbitration proceedings in comparison with their effects on judicial civil procedures in Brazil. Rules of some Brazilian arbitration chambers and two precedents of the Brazilian Superior Court on the subject are object of comments and analysis as well.

Conflito de Competência em Matéria de Arbitragem

ABSTRACT: This paper addresses the conflict of jurisdiction in arbitration from the perspective of Brazilian law. This subject is important due to its close relationship with fundamental principles of the arbitration system, such as competence-competence, and it became the issue of intense discussions after recent decisions by the Brazilian Superior Court of Justice. More specifically, this paper approaches the positive and negative aspects of the conflict of jurisdiction between (i) arbitrators; (ii) arbitral institutions, focusing on the analysis of the precedent CC STJ 113.260/SP; and (iii) arbitrators and judges; excluding from its scope discussions about consolidations, international lispendens and related topics. It discusses the model of competence-competence adopted by Brazil and other characteristics of arbitration to understand the pathology of the positive conflicts of jurisdiction. Taking into account features of civil procedure, as principles that outline the rules of conflict of jurisdiction between judges (neutrality and hierarchy), and of the arbitration system, as the autonomy of arbitration and the arbitrator's position in relation to the organizational chart of the Judiciary Branch, this paper concludes that the contribution of the state court in the resolution of conflicts of jurisdiction involving arbitral proceedings is inadequate. It ponders on some solutions to the proposed problems, accepting the use of the action of article 7 of the Brazilian Arbitration Law for cases in which there was no positive acceptance of jurisdiction by the arbitrators. Ultimately, it states the inconvenience of opening state courts to discussions about the jurisdiction of arbitrators during arbitral proceedings.

Crédito Tributário: garantias, privilégios e preferências

This paper will be a normative approach of the institute tax liability, especially as regard its enforcement, privileges and preferences. This analysis Will be visitede precepts contained in the Brazilian Tax Code (Law n. 5,172, of 10.25.1966), and enjoyed some judgments of the Brazilian Superior Court and the Brazilian Supreme Court. This paper analyzes regulatory institutes relevant to a proper understanding of the tax, as the tax liability, the taxable event, the tax assessment. In the construtcion of this paper, in addition of the legal provisions, raised up the teaching of the doctrine Brazilian tax as well as fanned about socially harmful aspects of the traditional habito f not complyng with the laws, wheter or not tax, which grow up on Brazilian soil.

Crédito Tributário: garantias, privilégios e preferências

This paper will be a normative approach of the institute tax liability, especially as regard its enforcement, privileges and preferences. This analysis Will be visitede precepts contained in the Brazilian Tax Code (Law n. 5,172, of 10.25.1966), and enjoyed some judgments of the Brazilian Superior Court and the Brazilian Supreme Court. This paper analyzes regulatory institutes relevant to a proper understanding of the tax, as the tax liability, the taxable event, the tax assessment. In the construtcion of this paper, in addition of the legal provisions, raised up the teaching of the doctrine Brazilian tax as well as fanned about socially harmful aspects of the traditional habito f not complyng with the laws, wheter or not tax, which grow up on Brazilian soil.

Gender Bias at the Brazilian Superior Labor Court

This paper examines the existence of gender bias within the Brazilian Superior Labor Court SLC(TST). Our analysis utilizes a database comprising all the lawsuits decided by the Brazilian Superior Labor Court SLC(TST) between August 2008 and June 2009. We explore, in particular, the fact that the lawsuits are randomly distributed among the judges (male or female) to analyze if the Reporting Judge's gender has an impact over the result of the lawsuit depending on the worker's gender. The results indicated that if we do not condition on nature of the lawsuit, the judges are not gender-biased. However, when we consider the type of lawsuit to be decided, we noticed that, as to some causes, such as:"salary equalization", "framing and affiliations", female judges tend to favor female individuals, whereas male judges are bent to favor male individuals. Our study enhances a possible institutional mechanism that may, at least, explain part of the salary differential between the genders.

Provisional Measures, Permanent Changes: The Arbitration-Friendliness of the Brazilian Superior Court of Justice

This case comment focuses on a recent court decision by the Brazilian Superior Court of Justice which is of significant interest in the context of the development of arbitration in Brazil. The decision affirms the jurisdiction of Brazilian courts to grant provisional measures before the constitution of the arbitral tribunal, subject to the latter's ratification, while denying jurisdiction for the same purpose where the arbitral tribunal has been constituted. While not completely in line with current international standards, the decision positively supports the jurisdiction of the arbitral tribunal to issue provisional measures in light of an all-but-clear provision of Brazilian law.

Children and teenagers working in artistic labor: Brazilian situation and international examples

This descriptive study about children and adolescents artistic labor verifies the applicable legislation, in Brazil, regarding the participation of children and adolescents in the entertainment industry and in advertising campaigns, as well as the judicial processes about the theme known by the Brazilian Superior Court of Justice up to October, 2010. The results permit to conclude that, due to the lack of specific regulation and general rule of child labor prohibition, the restrictions that tend to protect the health and security of children and adolescents that act in the artistic niche (television, advertising, fashion, movies etc.) have been, in Brazil, at subjective criteria of the judges and, in many cases, in the hands of producers themselves. Brief considerations on how other countries regulate the theme are also presented (the USA, Portugal and Argentina).

Management Innovation at the Brazilian Superior Tribunal of Justice

We describe administrative reform involving management innovation undertaken at the Superior Tribunal of Justice, Brazil’s highest appellate court for infra-constitutional cases. The innovation is the introduction of a new management model based on strategic planning and a process management approach to work processes. Introduction of the new model has been supported by the use of information technology and project management techniques. Qualitative methods were used for data collection and analysis. Findings reveal that the innovation is contributing to the development of a systemic overview of key processes, reducing the fragmenting effects of the division of work activities within the Tribunal. At least three new organizational routines or capabilities have been developed as a result of the innovation studied: Electronic Court Management, Project Management, and Process Management. The paper contributes to knowledge about court management, a field that has received little research attention in the public administration literature.

RESPONSABILIDADE CIVIL MÉDICA: BREVES CONSIDERAÇÕES EM FACE DA RECENTE JURISPRUDÊNCIA DO SUPERIOR TRIBUNAL DE JUSTIÇA

The civil liability for medical malpractice is a frequently debated subject in the legal doctrine and legal decisions. One of the most controversial points is the conciliation of the medical obligation’s nature - usually defined as an obligation of ways, and not of results - with the objective liability that is founded in the Brazilian Consumers Code (CDC). In general terms, it is recognizable that hospitals, clinics or similar institutions are ruled by the CDC, but this same legal statute excepts the objective liability of the liberal professional, such as the doctors. The reason for that is due to the fact that the patient’s cure is a fact that cannot be demanded from the physician, since its occurrence depends on factors that are not directly or totally related to the medical service. This legal exception affects only the liberal professional, which means that, in a first look, it cannot be extended to the legal person that has as object the hospital-medical care. On the other hand, if the objective liability is enforced in all cases, considering that the hospital is, in fact, a supplier of services, the medical obligation would be transformed into a real result obligation, since the hospital would be responsible in almost all the cases in which the cure of the patient does not take place. The following text, taking as paradigm the recent decisions of the Brazilian Superior Court of Justice (STJ), tries to trace some parameters of conciliation of these rules, analyzing the decisions in parallel with the legal doctrine.

Arbitration Clause and Acceptance: The Role of Silence and Fair Dealing in L'Aiglon S.A V. Têxtil União S.A. - A Brazilian Experience

The acceptance of an arbitration clause usually occurs with the express agreement of both parties involved. Nevertheless, in certain cases, the silence of one party can be interpreted as consent thereof. This line of thought was adopted by the Brazilian Superior Court of Justice in pronouncing its first homologation of a foreign judgment, emphasizing the importance of preserving the principle of good faith and the principle of fair dealing, which, in conjunction, guide the parties towards the achievement of what was previously agreed upon. The article therefore calls attention to the remarkable decision of the Brazilian Superior Court of Justice, which showed a pro-arbitration approach by reinforcing the role of silence and fair dealing in arbitration proceedings.

Superior Tribunal Militar: entre o autoritarismo e a democracia

This article aims to demonstrate how the Brazilian Superior Military Court of today (just as under the former military regime) continues to primarily defend what it considers the most important assets under its tutelage: hierarchy, discipline, and military duty. The Court has hybrid characteristics, displaying traits both from the authoritarian regime as well as from Brazil's current fledgling democracy. It is no coincidence that the Court has maintained its structure, functioning, and recruitment criteria virtually unaltered. The article contends that this institutional hybridism can only be overcome when effective democratic civilian oversight of the military is achieved.