Submitted by Filipe dos Santos (fsantos@pucsp.br) on 2017-01-10T11:27:44Z No. of bitstreams: 1 Caroline Zangerolami Garcia Paes de Almeida.pdf: 613760 bytes, checksum: 65c0e5324d6b4ca63491b77f80a37909 (MD5) / Made available in DSpace on 2017-01-10T11:27:44Z (GMT). No. of bitstreams: 1 Caroline Zangerolami Garcia Paes de Almeida.pdf: 613760 bytes, checksum: 65c0e5324d6b4ca63491b77f80a37909 (MD5) Previous issue date: 2016-12-09 / The purpose of this work is to study the binding trend of the labor precedents and case law directives, taking into consideration the position currently adopted by the Courts who make mandatory use of these institutions. In order to so, an analysis of the common law and civil law legal systems had to be made, by performing a historic research and presenting its conceptual, structural and rule applicability divergences, as well as the favorable and unfavorable arguments related to the validity of the application of these items in our country. Before expressing any opinion regarding the applicability between the systems, it was necessary to think critically and to reflect on the sociological reality of Brazil and the manner in which the judiciary branch is currently conducted. We have verified that the precedents issued by the Superior Labor Court are inevitably endowed with a binding trend and, thus, must go through the means of control and validity of our system / O presente trabalho tem como objetivo o estudo da tendência vinculante das Súmulas e Orientações Jurisprudenciais no âmbito trabalhista, tendo em vista a atual posição adotada pelos Tribunais que fazem uso obrigatório desses institutos. Para tanto, foi preciso uma análise dos sistemas jurídicos, common law e civil law, fazendo uma busca histórica e trazendo suas divergências conceituais, estruturais e de aplicabilidade da norma, bem como os argumentos favoráveis e desfavoráveis em relação à validade da aplicação desses verbetes em nosso país. Antes de qualquer opinião acerca da aplicabilidade entre os sistemas, fez-se necessário um pensar crítico-reflexivo da realidade sociológica brasileira e a forma com que, atualmente, o Poder Judiciário é conduzido. Verificamos que os precedentes expedidos pelo Tribunal Superior do Trabalho são, inevitavelmente, dotados de tendência vinculante e, por isso, devem passar pelos meios de controle e validade do nosso ordenamento

The paper aims to embrace the establishment, development of rules and functioning of the freedom of movement of goods on the internal market of the EU and the impact which the European Court of Justice (ECJ) case law had in this domain and still has today. It opens with the description of the internal market and the freedom of movement of goods, the role of the internal market for the European integration, the development of this freedom in the context of the internal market development and basic characteristics of the freedom of movement of goods. Thereafter, the focus shifts to the legal rules of the internal market and freedom of movement of goods, to the CJEU as one of the main European institutions, its role, competences, composition and the different types of proceedings in front of this Court as well as the changes brought by the Lisbon Treaty. The final part is devoted to the analysis of the chosen ECJ decisions that are considered to be the most significant for the free movement of goods. The paper provides comprehensive overview of the topic implying that the ECJ case law played an important role in the domain of free movement of goods and significantly influenced its functioning.

Title: Intellectual Property Rights Infringements in Computer Networks Environment The focal point of the presented thesis is a description of relevant legislation and case law and an analysis of various kinds of liability. The legislation has been described starting on the level of international treaties, including the TRIPS Agreement and the WIPO Internet Treaties, through European directives and finally closing with the Czech national law, the Copyright Act in particular and other selected norms of both civil and criminal law. The thesis deals with foreign regulations in France and the United States known for their consistency in copyright protection. The Czech Supreme Public Prosecutor Office guidance note has been discussed shortly followed by an analysis of civil, administrative and criminal liability. Case law spans the decisions from the Czech Constitutional Court, Supreme Court and Supreme Administrative Court, then the European Court of Justice judgement in the Scarlett case and a several foreign decisions, especially Dutch judgements in matters of the professional association BREIN and the American Betamax case.

Este trabalho busca identificar os entraves e perplexidades jurídicas no setor postal apontará as consequências da falta de clareza legislativa, doutrinária, jurisprudencial e regulatória no setor, aprofundando-se na análise de jurisprudência, especialmente do Supremo Tribunal Federal chamando atenção para a possibilidade de serem adotadas novas soluções para resolvê-los. O trabalho estrutura-se a partir de dois eixos intimamente relacionados: a) saber o que é serviço postal, qual é sua relevância na atual conjuntura das comunicações e qual é a realidade de prestação dos serviços nesse setor, objeto dos Capítulos 1 e 2, e b) desenvolver uma discussão crítica sobre serviço (público ou não) postal e monopólio postal, objeto do Capítulo 3 e núcleo central do trabalho. Ainda que o foco desta análise não seja a discussão mais ampla sobre a importância do planejamento e dos arranjos jurídico-institucionais do setor, procurar-se-á chamar atenção para esses aspectos no âmbito do setor postal. A conclusão final da pesquisa, que confirma a hipótese central do trabalho, é a de que o regime jurídico do setor postal se constrói predominantemente a partir da atuação da ECT. O regime jurídico do setor tem sido delimitado a partir das políticas públicas voltadas à ECT, dos serviços postais por ela prestados e das decisões judiciais em que a estatal é autora ou ré, o que lhe confere um regime jurídico privilegiado e protetivo. A análise de todo esse arcabouço jurídico revela que, em grande medida, objetiva-se preservar a empresa pública ECT, em detrimento da avaliação do quadro maior do setor postal brasileiro. Esse entrave do setor leva à reflexão sobre a possibilidade de serem adotadas novas soluções para resolver os problemas setoriais, que podem abarcar desde soluções interpretativas a uma revisão do quadro normativo atualmente aplicável ao setor. / This dissertation aims to identify the legal obstacles and perplexities in the postal sector will point the consequences of the lack of clarity of the legislative, doctrinal, case law and regulatory treatment of the sector, deepening the analysis of case law, especially of the Supreme Court calling attention to the possibility of adopting new solutions to solve them. The work is structured from two closely interconnected axes: a) one, to know what is the postal service, what is its relevance in the current communications, and the reality of service provision, the subject of Chapters 1 and 2; b) two, to develop a critical discussion about postal service (public or not) and post monopoly, the subject of Chapter 3 and the central core of the work. Although the focus of this analysis does not correspond to the wider discussion about the importance of planning and of legal and institutional arrangements in the sector, this dissertation will seek to draw attention to these aspects within the postal sector. The final conclusion of the study, which confirms the central hypothesis of the work, is that the legal system of the postal sector is built predominantly from the action of ECT. The legal system has been delimited from public policies to ECT, from the postal services it provides and from judicial decisions in which the public company is either plaintiff or defendant, and which gives to ECT a privileged and protective legal system. The analysis of all this legal framework reveals that, to a great extent, the objective is to preserve the public company ECT, rather than the evaluation of the bigger picture of the postal sector in Brazil. This obstacle of the sector leads to a reflection on the possibility of adopting new solutions to solve the problems, which can range from interpretative solutions to a review of the regulatory framework currently applicable to the sector.

O Novo Acordo de Capitais de Basiléia introduz a alocação de capital para a cobertura de riscos operacionais, estando incluídos entre estes os riscos legais. Estes riscos, no cenário brasileiro, apresentam potencial para ocasionar perdas significativas e um exemplo disto é o volume de provisões contábeis para a cobertura de riscos fiscais, trabalhistas e cíveis, que em dezembro de 2006 atingiam o montante de R$ 39 bilhões no Sistema Financeiro. Em muitos casos a origem destas perdas vai ser encontrada em uma falha operacional; contudo perdas podem advir de mudanças na jurisprudência dos tribunais, e estas perdas também podem ser substanciais. Nesta dissertação, será abordado o impacto do ambiente legal sobre o crédito bancário e, em especial, se destacará o impacto da jurisprudência. Para comprovar este impacto utilizamos modelos que associam a redução no volume de operações de arrendamento mercantil, com decisões judiciais descaracterizando os contratos de leasing. Os dados comprovam que as decisões judiciais podem impactar de forma significativa o crédito. Além disso, os dados demonstram que o processo de consolidação da jurisprudência é lento, gerando longos períodos de incerteza jurisprudencial. / The New Basel Capital Accord introduces capital allocation for operational risks (including legal risks). These risks - in the Brazilian scenario -, present potential for significant losses and a good example of this is the amount of provisions related to fiscal, labor and civil litigation risks, which in December 2006 added up to R$ 39 billions. In many cases, the origin of these losses derives from an operational failure; yet losses may have their origin in changes of legal jurisprudence and may involve substantial sums of money. In this dissertation, the focus will be on the impact of the legal environment on bank loans, with an emphasis on legal jurisprudence. In order to prove this impact, we used models that correlate the reduction in the volume of leasing operations with court decisions that strongly affected the interpretation of leasing contracts. Data show that court decisions may impact loans significantly. Besides, data evidence that the process of convergence and maturation of such decisions is low, thus generating long periods of jurisdictional uncertainty.

O Novo Acordo de Capitais de Basiléia introduz a alocação de capital para a cobertura de riscos operacionais, estando incluídos entre estes os riscos legais. Estes riscos, no cenário brasileiro, apresentam potencial para ocasionar perdas significativas e um exemplo disto é o volume de provisões contábeis para a cobertura de riscos fiscais, trabalhistas e cíveis, que em dezembro de 2006 atingiam o montante de R$ 39 bilhões no Sistema Financeiro. Em muitos casos a origem destas perdas vai ser encontrada em uma falha operacional; contudo perdas podem advir de mudanças na jurisprudência dos tribunais, e estas perdas também podem ser substanciais. Nesta dissertação, será abordado o impacto do ambiente legal sobre o crédito bancário e, em especial, se destacará o impacto da jurisprudência. Para comprovar este impacto utilizamos modelos que associam a redução no volume de operações de arrendamento mercantil, com decisões judiciais descaracterizando os contratos de leasing. Os dados comprovam que as decisões judiciais podem impactar de forma significativa o crédito. Além disso, os dados demonstram que o processo de consolidação da jurisprudência é lento, gerando longos períodos de incerteza jurisprudencial. / The New Basel Capital Accord introduces capital allocation for operational risks (including legal risks). These risks - in the Brazilian scenario -, present potential for significant losses and a good example of this is the amount of provisions related to fiscal, labor and civil litigation risks, which in December 2006 added up to R$ 39 billions. In many cases, the origin of these losses derives from an operational failure; yet losses may have their origin in changes of legal jurisprudence and may involve substantial sums of money. In this dissertation, the focus will be on the impact of the legal environment on bank loans, with an emphasis on legal jurisprudence. In order to prove this impact, we used models that correlate the reduction in the volume of leasing operations with court decisions that strongly affected the interpretation of leasing contracts. Data show that court decisions may impact loans significantly. Besides, data evidence that the process of convergence and maturation of such decisions is low, thus generating long periods of jurisdictional uncertainty.

II. Electing to Change the Profession: Educating to Influence Change Interested in influencing change? Instructors are often creative in the selection of topics, educational methodologies and technology about how to influence change. This session will focus on creative approaches or subjects that educate about how to influence change in schools and in practice. Facilitators at each roundtable will describe how they try to influence change and the lessons learned from their experiences. Learning Objectives: 1. Discuss how to use students to change practitioners and practice.2. Develop ideas for implementing change for use upon return to institution.3. Identify new ways to implement change in practice.

This thesis examines the constitutional position in relation to those geographical areas over which the Commonwealth has sole power. These are the Territories, and Commonwealth places (over which, however, the States may retain some vestigial power). The thesis seeks to give a comprehensive account of the constitutional law concerning these heads of power. The thesis traces the tortuous history of the case law on the Territories, with its many instances of inconsistent decisions and dicta. In the words of a High Court Judge, Sir Douglas Menzies, the cases have "not resulted in a coherent body of doctrine". The problems have been particularly acute in regard to the exercise of judicial power, and they are compounded by the silence of the Constitution on some major issues concerning the Territories, such as the relationship between the 'Territories' power and the Constitution as a whole. The thesis' main contention is that, contrary to predominant doctrine, the constitutional position of the Territories and of Commonwealth places is federal, not 'disparate'. In this connection, several tenets are advanced: first, that the Constitution must be interpreted as a whole�that is, as a single instrument; secondly, that the Territories are an integral part of Australia, and their inhabitants, while not enjoying all the constitutional benefits of State residents, are full members of the Australian community; and thirdly, that there is no constitutional distinction to be drawn between different classes of Territory�thus, despite some contrary suggestions, there is no distinction between 'internal' and 'external' Territories or between Territories acquired from the States and Territories otherwise acquired. The thesis explores the particular difficulties, notably in the judicial sphere, that arise from the relevant case law, and it critically examines the cases against the text of the Constitution, as well as against the yardstick of those tenets. With regard to the Territories, the thesis analyses the constitutional topics of executive power and self-government. It considers particular issues concerning each of the three self-governing Territories, including the special status of the Australian Capital Territory as the federal "seat of government". In addition, the thesis looks at the constitutional position in the United States concerning Territories, federal enclaves and the American seat of government (the District of Columbia). The thesis draws a comparison between the American position and the corresponding position in Australia, and it critically considers the judicial interpretation, in both countries, of the constitutional grant to the federal legislature of exclusive, or sole, power over such geographical areas. This process assists an evaluation of the Australian position. The thesis concludes that, in some respects, the Australian case law has gone seriously astray, especially in treating the 'Territories' power as more or less separate from the rest of the Constitution. This judicial approach has led to a convoluted and confusing situation. Despite a degree of amelioration as a result of some more recent cases, the corrective process is by no means complete. The courts are hampered in their development of a "coherent body of doctrine" by the random way in which cases come before them, and it is unlikely that the position can be fully retrieved solely by judicial decisions. The thesis therefore proposes various reforms, and it sets out, in an appendix, proposed amendments of the Constitution. In addition to expounding and criticising the case law on the constitutional topics under discussion, the thesis reviews and, where appropriate, cites from the relevant legal literature. The thesis considers the Australian case law as decided down to the end of 2004.

Tax avoidance has been a concern to revenue authorities throughout the ages, and revenue authorities worldwide are engaged in a constant struggle to ensure taxpayer compliance while combating tax avoidance. South Africa is no exception to this struggle and the increasingly innovative ways in which taxpayers seek to minimise their tax burdens necessitate amendments in order to remain at the forefront of taxpayer compliance. In view of the above, the general anti-avoidance rules (GAAR) have been amended numerous times to address weaknesses. The most recent of these amendments are those of 1996 and 2006. The research on GAAR in South Africa has focused on critical analyses once the legislation fails to stand up to the rigours of court, and has thus used the principle of hindsight to criticise GAAR and recommend improvements. However, in their current form (post-2006 amendments) the GAAR have not been presented before the courts, and thus the use of hindsight is not an appropriate tool to determine if the current GAAR regime has improved upon the weaknesses identified in the past. This study applied a qualitative case study approach to determine if the 2006 amendments to GAAR have in fact addressed these weaknesses. The current GAAR regime was applied to previous cases to determine if the unfavourable judgments for the Commissioner would now be considered favourable. In executing this process, an instrument was developed in phase 1 of the literature study to apply the new GAAR to the cases. In the second phase of the study this framework was applied to case law in which the previous GAAR regimes failed to stand up to the rigours of court, thus determining whether the 2006 amendments to GAAR addressed the weaknesses of the previous GAAR regime. The final phase of the study consisted of a literature control to determine if similar such conclusions have been made by other commentators to support the findings of the study. The findings of the case studies revealed that, on a balance of probabilities, none of the cases selected for analysis would have been held in favour of the Commissioner if they were brought to the courts today on the same grounds that they were attacked at the time and the courts used the instrument developed in phase 1 to apply the GAAR to these transactions. The study therefore indicates that the use of similar (often identical) wording of the purpose test as in the previous GAAR, as well as the use of the purpose test in conjunction with the amended abnormality test still result in a GAAR regime that may be an ineffective deterrent to tax avoidance. / Thesis (M.Com. (South African and International Taxation))--North-West University, Potchefstroom Campus, 2011.

Tax avoidance has been a concern to revenue authorities throughout the ages, and revenue authorities worldwide are engaged in a constant struggle to ensure taxpayer compliance while combating tax avoidance. South Africa is no exception to this struggle and the increasingly innovative ways in which taxpayers seek to minimise their tax burdens necessitate amendments in order to remain at the forefront of taxpayer compliance. In view of the above, the general anti-avoidance rules (GAAR) have been amended numerous times to address weaknesses. The most recent of these amendments are those of 1996 and 2006. The research on GAAR in South Africa has focused on critical analyses once the legislation fails to stand up to the rigours of court, and has thus used the principle of hindsight to criticise GAAR and recommend improvements. However, in their current form (post-2006 amendments) the GAAR have not been presented before the courts, and thus the use of hindsight is not an appropriate tool to determine if the current GAAR regime has improved upon the weaknesses identified in the past. This study applied a qualitative case study approach to determine if the 2006 amendments to GAAR have in fact addressed these weaknesses. The current GAAR regime was applied to previous cases to determine if the unfavourable judgments for the Commissioner would now be considered favourable. In executing this process, an instrument was developed in phase 1 of the literature study to apply the new GAAR to the cases. In the second phase of the study this framework was applied to case law in which the previous GAAR regimes failed to stand up to the rigours of court, thus determining whether the 2006 amendments to GAAR addressed the weaknesses of the previous GAAR regime. The final phase of the study consisted of a literature control to determine if similar such conclusions have been made by other commentators to support the findings of the study. The findings of the case studies revealed that, on a balance of probabilities, none of the cases selected for analysis would have been held in favour of the Commissioner if they were brought to the courts today on the same grounds that they were attacked at the time and the courts used the instrument developed in phase 1 to apply the GAAR to these transactions. The study therefore indicates that the use of similar (often identical) wording of the purpose test as in the previous GAAR, as well as the use of the purpose test in conjunction with the amended abnormality test still result in a GAAR regime that may be an ineffective deterrent to tax avoidance. / Thesis (M.Com. (South African and International Taxation))--North-West University, Potchefstroom Campus, 2011.