Submitted by Filipe dos Santos (fsantos@pucsp.br) on 2017-03-15T13:32:11Z No. of bitstreams: 1 Ricardo Morishita Wada.pdf: 1591381 bytes, checksum: 11b02318257cb32900a1a322faddcd7f (MD5) / Made available in DSpace on 2017-03-15T13:32:11Z (GMT). No. of bitstreams: 1 Ricardo Morishita Wada.pdf: 1591381 bytes, checksum: 11b02318257cb32900a1a322faddcd7f (MD5) Previous issue date: 2017-02-20 / The present thesis aims to propose the systematization and application of the abusive commercial practices foreseen in the Consumer Protection Code, in the light of the post-positivist paradigm and the general lines of Friedrich Müller's Theory of Law. The discretionary and casuistic application provided by the positivist model does not allow to evaluate with clarity and transparency the values that constitute the decision, lessening both judicial and social control. In the proposed systematization, it is expected to remove the challenges of the current model and to ensure unity and order of the regimen of protection against abusive commercial practices, in order to strengthen its application and thus consumer protection. The abusive practices of the Consumer Protection Code were analyzed by through methodical normative program and the ambit of the norm. The national doctrine and the foreign experience have contributed to both the elaboration of the program of the norm and the interpretation of the linguistic elements. The scope of the norm was elaborated based on legal cases originated from the the Superior Court of Justice’s caselaw and from hypothetical cases related to the right of the consumer. The norm of protection against abusive practices has been fulfilled in many cases. In others, some questions were raised to be considered before the legal case / A presente tese objetiva propor a sistematização e a aplicação das práticas comerciais abusivas previstas no Código de Defesa do Consumidor, à luz do paradigma pós-positivista e das linhas gerais da Teoria Estruturante do Direito, de Friedrich Müller. A aplicação discricionária e casuística proporcionada pelo modelo positivista não permite avaliar, com clareza e transparência, os valores que constituem a decisão, fragilizando o controle judicial e social. Na sistematização proposta, espera-se afastar os desafios do modelo atual e assegurar a unidade e a ordem do regime de proteção contra as práticas comerciais abusivas, com vistas a fortalecer sua aplicação e, assim, a proteção do consumidor. As práticas abusivas do Código de Defesa do Consumidor foram analisadas mediante metódica do programa da norma e do âmbito da norma. A doutrina nacional e a experiência estrangeira contribuíram para a elaboração do programa da norma e interpretação dos elementos linguísticos. O âmbito da norma foi elaborado a partir de casos jurídicos oriundos da jurisprudência do Superior Tribunal de Justiça e de casos hipotéticos relacionados ao direito do consumidor. A norma de proteção contra as práticas abusivas foi concretizada em muitos casos. Em outros, foram apontadas algumas questões para serem consideradas diante do caso jurídico

- / The United European legislation, as a result among other things, unified the markets. Products now circulate, freely, among the member states. This development allows the consumer who lives in one part of the world to be informed, to research and to buy products from other parts of the world. However, reservations have been observed, because of the different legislations among countries. Businesses take advantage of the situation and aspire to increase there capital and strengthen their superiority by adjusting prices (through the web or their stores) to their consumers, and different unfair commercial practices that don’t benefit the consumer. To face this situation the European Union (E.U) has set the goal of harmonization of laws in the area of protecting the consumer of illegal actions by businesses and in long term goals to simplify trading among borders. The laws of the E.U for protecting the economic benefits of the consumer from illegal trading practices, were until recently, sketchy, for example sect oral instructions 84/450/E.U for deceptive advertising, the instructions 97/55/E.U for comparative advertising (which therefore were coded by the instructions 2006/114/E.U and other detailed instructions. In May of 2005, the European Parliament voted in favor of the law 2005/29/E.C, with the object of protecting consumers of illegal trading practices by businesses. These directive are said to contribute to regulations, on the side of the businesses to activate boundry marketing and promote their sales on the other hand, it will help consumers approach overboundry buying with more trust with the result of assured and safe trade. It involves directive frameworks, fully harmonized which means that member-countries, will not have the power to preserve or introduce new strict regulations, but will restrict regulations of the directives.

Thesis title: Aggressive business practices in competition This thesis deals with an analysis of aggressive business practices within competition, focusing on aggressive business practices in relation to other competitors, i.e. B2B relations. The thesis is divided into four chapters with an unnumbered introduction and conclusion. The most crucial part of the thesis can be found in the second and third chapter. The first chapter introduces reader to the issue of unfair competition. In particular, the chapter deals with the analysis of the general clause, as the key provision within the private law framework of unfair competition. Above mentioned is the reason of a brief historical development of this provision being also included in this chapter. Furthermore, the chapter considers the adaptation of unfair competition among the European Union. The second chapter deals with the analysis of the factual phenomena of aggressive business practices, namely denigration (section 2984), unlawful comparative advertising (section 2980) and breach of trade secrets (section 2985), considering the newly adopted directive on the protection of undisclosed know-how and business information (trade secrets). The chapter also incorporates relevant case law. Third chapter deals with aggressive business practices...

European law against unfair competition This diploma thesis deals with the regulation of European law against unfair competition in the Directive on unfair commercial practices as well as in the Directive concerning misleading and comparative advertising. The aim of this thesis is to provide a comprehensive explanation of the areas of the law against unfair competition regulated by these directives with regard to relevant jurisprudence of the Court of Justice of the European Union, another objective is to evaluate the success of transposition of this regulation into czech national law. After the introductary part, the thesis is diveded into six chapters. The first chapter briefly defines the status of the law against unfair competition in the legal system, interprets the basic terms and describes the role of the Court of Justice of the European Union. The second chapter is dedicated to the evolution of the law against unfair competition at the level of European Union. The third chapter is dedicated to misleading advertising and its regulation by the Directive concerning misleading and comparative advertising, the fourth chapter is dedicated to comparative advertising regulated by the same directive. The fifth chapter deals with unfair commercial practices in business to consumer relations regulated...

Resumé Community Law Against Unfair Competition The purpose of my thesis is to analyze the European legislation on unfair competition, its application by Court of Justice of the European Union (hereinafter referred to as "CJ EU") and its implementation into Czech law. The thesis is composed of six chapters. Chapter One is dedicated to the general explanation and description of the unfair competition and its subjects. Chapter Two examines the background and evolution of the harmonization process on unfair competition on European level and summarizes present applicable directives. It also provides a brief note on respective Czech regulation in which these European directives were implemented. Chapter Three is dedicated to the subject of misleading advertising as defined by the Directive 2006/114/EC. The first part of this chapter provides a description of misleading advertising, second part illustrates the approach of CJ EU in its decisions. Third part is concerned with the Czech regulation of misleading advertising while it can be concluded that Czech regulation is sufficient according to required European standard without further need of implementation. Chapter Four is concerned with the comparative advertising and is subdivided into three main parts. Its first part contains a summary of conditions under...

European Law Against Unfair Competition Resumé This diploma thesis deals with the European (EU) law against unfair competition, or more specifically with the legal regulation of two directives of European Union, which are the ones for the european law against unfair competition most significant, Misleading and Comparative Advertising Directive and Unfair Commercial Practices Directive. The purpose of this thesis is to provide comprehensive and understandable overview of the legal regulation of both above mentioned directives, to analyze selected judicature of the Court of Justice of the European Union related to these directives, to briefly outline interpretation problems arising from the transposition of both directives to the Czech legal order, which were identified by professional literature. The content of this diploma thesis is divided into 5 main chapters. After the Introduction follows the chapter briefly defining the main notions, economic competition, competition law, the law against unfair competition and unfair competition. The second chapter deals with the development of the European Law against unfair competition till the present day. The third chapter provides overview of the legal regulation of Misleading and Comparative Advertising Directive, describes factual basis of the misleading...

Unfair Competition and Unfair Commercial Practices in the Online Environment of Social Networks Abstract (ENG) The aim of this master's thesis is to analyse applicable law relating to the phenomenon of surreptitious advertising occurring in the posts published by influencers on social networks, examined in the scope of Czech law against unfair competition and unfair commercial practices. The author also aims to describe the particulars of the proper indication of advertising nature of such posts. The introductory part of this thesis covers general legal provisions on unfair competition and unfair commercial practices (with regard to the European law influence) and legal regulation of social networks. Analysed in detail are the general clause of unfair competition, denominate (special) and innominate (judicial) merits of the cases of unfair competition and the means of protections against unfair competition. Unfair commercial practices are characterised by examination of the general clause, small general clauses and the blacklist of unfair commercial practices. Social networks are introduced generally as information society services and audiovisual media services, and then afterwards three selected social networks - Facebook, Instagram and YouTube - are broadly characterised; the relationship between the...

European Law Against Unfair Competition Abstract The scope of this thesis is intended to cover mainly two branches of the European law against unfair competition. Those two branches were recognized in (i) business-to- business relations governed mostly by the European Union Directive 2006/114/ES and in (ii) business-to-consumer relations governed by the European Union directive 2005/29/ES respectively. Taking in consideration the above-said, it can be stated that this thesis predominantly analyzes what should be in more precise way called as "European Union law against unfair competition". The thesis is divided into ten chapters while five of them should be considered as the leading ones. First of them is the chapter number five dedicated to B2B relations. The author examines the respective directive 2006/114/ES also to the extent of its relevant jurisprudence of the European Court of Justice. The same approach was chosen to describe functioning of B2C relations under directive 2005/29/ES in chapter number seven. Chapter number six focuses on so called "Average Consumer" model that has been found as one of the most important elements of EU law against unfair competition. Because of its exceptional relevance, chapter six deals with the average consumer in a very detail, emphasizing important role of the...

Made available in DSpace on 2016-04-26T20:19:32Z (GMT). No. of bitstreams: 1 Maria Isabel da Cunha Mathias.pdf: 915558 bytes, checksum: a869711be121803295ec3e948234dc97 (MD5) Previous issue date: 2010-10-26 / The present dissertation proposes a reflection about the permanent exposure of the diffuse collectivity of consumers regarding marketing techniques commercial practices meant to move and foster consumption and the respective consumers legal protection ensured by the Federal Constitution and the Consumer Defense Code considering the pathologies found in contemporary consumption society. This study was divided into five chapters, and its development initially borders citizenship and human dignity as the fundamentals of the Democratic State of Defense, emphasizing consumer protection as a fundamental right enforceable by the State in demanding protection against the violation of rights which occur as a result of relationships between private parties and identifying the constitutional norms that ensure it. The second chapter contemplates the recognition of legitimate interests evidenced in the 20th century, the evolution of the diffuse and collective interest concept and the important accomplishment that represented the Consumer Defense Code in the guardianship of these rights. The third chapter is dedicated to the commercial practices present in the consumer society and deals with marketing as a product and service placement technique in the consumer market, touching on the concept of consumer by comparison, the promotions, the information and mass communication, as well as the vulnerability of the consumer regarding these commercial practices. The fourth chapter presents an overview of the marketing techniques applied in order to influence the behavior of the consumer, through the exposure of concepts, definitions, scopes and methods found in the literature of this area of knowledge followed by the fifth chapter which presents examples which illustrate the behaviors and habits acquired and stimulated by the marketing campaigns. Finally, we can conclude that in compliance with its social pacification function, the consumer rights provides legal protection to the consumer collectivity, taking on a lead role in the resolution of conflicts which occur as a result of the pathologies found in the contemporary consumption market through the application of norms from the Consumer Defense Code, although the Brazilian society is still lacking in public policies and specific regulation in the marketing segment / A presente dissertação propõe uma reflexão a respeito da permanente exposição da coletividade difusa de consumidores às técnicas de marketing - práticas comerciais que têm por finalidade a incitação e o fomento do consumo - e da respectiva proteção jurídica do consumidor, assegurada pela Constituição Federal e pelo Código de Defesa do Consumidor em face das patologias encontradas na sociedade de consumo contemporânea. Dividido em cinco capítulos, o desenvolvimento deste estudo aborda inicialmente a cidadania e a dignidade humana como fundamentos do Estado Democrático de Direito, destacando a proteção do consumidor como direito fundamental, oponível ao Estado para exigir-lhe proteção contra violações de seus direitos oriundas de relações entre particulares, e identificando as normas constitucionais que a asseguram. O segundo capítulo contempla o reconhecimento dos interesses legítimos evidenciados no século XX, a evolução do conceito de interesses difusos e coletivos e a importante conquista que representou o Código de Defesa do Consumidor na tutela desses direitos. O terceiro capítulo é dedicado às praticas comerciais presentes na sociedade de consumo e trata do marketing como técnica de colocação de produtos e serviços no mercado de consumo, abordando o conceito de consumidor por equiparação, a oferta, a informação e a comunicação de massa, bem como a vulnerabilidade do consumidor em face de tais práticas comerciais. O quarto capítulo apresenta panorama das técnicas de marketing aplicadas com o fim de influenciar o comportamento do consumidor, através da exposição de conceitos, definições, escopos e métodos coletados em literatura dessa área de conhecimento, seguido do quinto capítulo, que apresenta exemplos ilustrativos de comportamentos e hábitos adquiridos e incentivados pelas campanhas de marketing. Por fim, conclui-se que, em cumprimento à sua função de pacificação social, o direito do consumidor proporciona proteção jurídica à coletividade difusa de consumidores, desempenhando papel de destaque na solução de conflitos decorrentes das patologias encontradas no mercado de consumo contemporâneo, através da aplicação das normas do Código de Defesa do Consumidor, embora a sociedade brasileira ainda careça de políticas públicas e de regulamentação específica ao segmento do marketing

Les seniors n'auraient que récemment brisé le « tabou de la jeunesse» (Rochefort, 2004) et ne semblent de facto, plus exclus des pratiques physiques et corporelles. Ainsi , l''augmentation croissante de leur groupe d'âge (Richet-Mastain, 2007), réinterroge les problématiques autour de la corporéité de l'individu vieillissant, de son rapport à l'activité physique mais aussi à son corps de manière générale. L'étude du senior et de sa corporéité, définie par l'« ensemble des traits concrets du corps comme être social » (Berthelot, 1983), constitue un objet de recherche relativement nouveau dans l'horizon de la sociologie contemporaine, et permet d'aborder scientifiquement la complexité du lien que nourrissent les pratiques corporelles avec ce groupe pluriel d'individus portant fréquemment « les stigmates de l'âge » (Lebreton , 2006). De par les enjeux déterminants induits par ce groupe social, et la diversité manifeste de ces mêmes seniors, cette interrogation sur leur corporéité prend de par sa réalité démographique et sociale, toute sa complexité mais aussi toute sa légitimité. Quelles sont alors les raisons de pratiques, et les motivations réelles des seniors s'adonnant à des pratiques corporelles ? Leur corporéité est-elle alors, subie ou choisie ? Quelles sont leurs demandes corporelles et quels sens donnent t-ils à ces dernières ? / Seniors would have only recently broke the "taboo of Youth" (Rochefort, 2004) and seem to excluded from the more physical and bodily practices. Thus, the increasing of their age group (Richet-Mastain , 2007), re-examines the issues surrounding the corporeality of the aging individual, its relation to physical activity , but also to the body in general. The study's senior and his corporeality, defined by "all concrete features of the body as a social being" (Berthelot, 1983) is a relatively new research topic in the horizon of contemporary sociology, and allows to address the complexity of the scientific link nourish body practices with this group of individuals carrying plural frequently "the stigma of age" (Lebreton , 2006). Due to the critical issues arising from this social group, and the apparent diversity of these seniors, this question takes on their corporeality because of its demographic and social reality, its complexity but also its legitimacy . What then are the reasons for practices and the real motivations of seniors engaged in bodily practices ? Their physicality is it then suffered or chosen ? What are their personal demands and what meaning do they give them ?