Este trabalho versa sobre a hipótese de reparação civil por abandono afetivo que decorre da infração ao dever de cuidado do idoso. Analisa-se a tutela dos direitos dos idosos no ordenamento jurídico brasileiro através de um retrospecto legal com sutil referência ao contexto histórico mundial e ao Direito Comparado. Contextualiza-se a interpretação dos direitos dos idosos em face do fundamento do Direito pátrio na dignidade da pessoa humana a partir da Constituição Federal de 1988 e a transposição desta no Direito Civil e no Direito de Família. Adiante é apreciado o abandono afetivo, seu conceito e expansão pela a adoção do modelo atual eudemonista da família que importou na inclusão do dever de cuidado como elemento do afeto. A seguir o cuidado é abordado enquanto infração ao dever que dele decorre para identificação da conduta omissiva. Por fim, é explorado o instituto da responsabilidade civil, através do estudo de cada um dos seus requisitos, para conclusão quanto ao cabimento do dever de reparação pela constatação da ocorrência do ato ilícito de infração ao dever de cuidado que implica abandono afetivo em razão do dano que dele resulta e da extensão deste, isto valorado no caso concreto. / This paper deals with the hypothesis of civil reparation for affective abandonment of the elderly that results from the violation of the duty of care of the elderly. It analyzes the protection of the rights of the elderly in the Brazilian legal system through a legal retrospect with subtle reference to the world historical context and Comparative Law. The interpretation of the rights of the elderly in the face of the foundation of the patrimony right in the dignity of the human being is contextualized from the Federal Constitution of 1988 and the transposition of this one in the Civil Law and in the Right of Family. Above, affection abandonment, its concept and its expansion are appreciated by the adoption of the current eudemonist model of the family that has imported the inclusion of the duty of care as an element of affection. Care is then approached as an infraction of the duty derived from it to identify the omissive conduct. Finally, the institute of civil responsibility is explored, through the study of each one of its requirements, to conclude on the compliance of the duty to make reparation for the finding of the occurrence of the illicit act of infraction to the duty of care that implies affective abandonment due to the damage that results from it and the extent of it, that is valued in the concrete case.

A atividade exercida pelos administradores de sociedades anônimas envolve a prática de uma série de atos de gestão não previamente ou exaustivamente definidos, estando sujeita, portanto, a uma margem de discricionariedade. Apesar das limitações impostas pela Lei e pelos Estatutos Sociais, ao administrador caberá, cotidianamente, escolher uma alternativa, dentre muitas possíveis, para cada negócio realizado pela companhia. A proposta deste trabalho é estudar a influência da regulação jurídica sobre as escolhas que são tomadas pelos administradores, mais precisamente o chamado dever de diligência, estudando, deste modo, como a escolha de determinados padrões de conduta pela regulação jurídica pode determinar a relação dos administradores com o risco empresarial e afetar a atividade econômica de um país. O estudo é conduzido em grande parte com a utilização da metodologia da análise econômica do direito, tendo em vista as frutíferas contribuições que as ferramentas de microeconomia podem trazer para construção de análises sobre os comportamentos de agentes econômicos. / The activity rendered by managers ahead of corporations contemplate series of acts not previously or thoroughly defined, being subjected, therefore, to a discretionary margin. Nonetheless all limits imposed by Law and by the company by-laws, a manager, every day, still should choose one alternative amongst many possible, for each company business. The purpose of this work is to study the influence of legal regulation over the choices made by company managers, more precisely about the duty of care, studying, in this sense, how certain behavioral patterns imposed by legal regulation can determine the relationship of company managers with business risks and, hence, affect economic activities in a country. The study is grounded in the methodology proposed by Law & Economics, considering all prolific contributions received by the microeconomic tools for the construction behavioral analysis of economical agents.

La propriété intellectuelle est un des droits fondamentaux. Conformément à l’esprit résultant de la théorie de l’ordre de valeur objectif, les intermédiaires de l’Internet doivent assumer une obligation de protection active en matière de propriété intellectuelle. Cependant, en raison d’une relation de répartition des obligations entre les titulaires de droits de propriété intellectuelle, les usagers, l’État et les intermédiaires de l’Internet, l’obligation de protection qui incombe à ces derniers doit être limitée. Afin d’éviter que les obligations des intermédiaires de l’Internet ne soient ni excessives ou ni insuffisantes, un certain nombre de principes juridique et économique et de critères permettant d’adapter l’obligation aux objets de diffusion, aux modes d’exploitation ainsi qu’au caractère lucratif doit être prise en compte lors de la mise en place de ces obligations. Plus précisément, les intermédiaires de l’Internet ne doivent pas prendre en charge une seule et unique obligation mais de multiples obligations, y compris l’obligation de filtrage. Ces obligations forment un système complet leur permettant d’assurer de manière active la protection des droits de propriété intellectuelle / Intellectual property is one of fundamental rights. By developing and applying the objective value order theory, the internet intermediaries should assume the obligation to actively protect the intellectual property. Meanwhile, as shared obligations distributed among the government, the right holder, the internet intermediaries, and the user, the active obligation of IP protection that the internet intermediaries can carry out is limited. In order to insure the moderation of obligation, it would be preferable to respect the pertinent legal and economic principles, and distinguish the target of dissemination, the business model, and the profit factor in choosing the type of obligations. It should be noted that this active protection would not be accomplished only through a unique obligation. It should articulate several types of obligation, including but not limited to filtering obligation. These obligations, all together, form an obligation system which enables internet intermediaries to actively protect intellectual property

Este trabalho versa sobre a hipótese de reparação civil por abandono afetivo que decorre da infração ao dever de cuidado do idoso. Analisa-se a tutela dos direitos dos idosos no ordenamento jurídico brasileiro através de um retrospecto legal com sutil referência ao contexto histórico mundial e ao Direito Comparado. Contextualiza-se a interpretação dos direitos dos idosos em face do fundamento do Direito pátrio na dignidade da pessoa humana a partir da Constituição Federal de 1988 e a transposição desta no Direito Civil e no Direito de Família. Adiante é apreciado o abandono afetivo, seu conceito e expansão pela a adoção do modelo atual eudemonista da família que importou na inclusão do dever de cuidado como elemento do afeto. A seguir o cuidado é abordado enquanto infração ao dever que dele decorre para identificação da conduta omissiva. Por fim, é explorado o instituto da responsabilidade civil, através do estudo de cada um dos seus requisitos, para conclusão quanto ao cabimento do dever de reparação pela constatação da ocorrência do ato ilícito de infração ao dever de cuidado que implica abandono afetivo em razão do dano que dele resulta e da extensão deste, isto valorado no caso concreto. / This paper deals with the hypothesis of civil reparation for affective abandonment of the elderly that results from the violation of the duty of care of the elderly. It analyzes the protection of the rights of the elderly in the Brazilian legal system through a legal retrospect with subtle reference to the world historical context and Comparative Law. The interpretation of the rights of the elderly in the face of the foundation of the patrimony right in the dignity of the human being is contextualized from the Federal Constitution of 1988 and the transposition of this one in the Civil Law and in the Right of Family. Above, affection abandonment, its concept and its expansion are appreciated by the adoption of the current eudemonist model of the family that has imported the inclusion of the duty of care as an element of affection. Care is then approached as an infraction of the duty derived from it to identify the omissive conduct. Finally, the institute of civil responsibility is explored, through the study of each one of its requirements, to conclude on the compliance of the duty to make reparation for the finding of the occurrence of the illicit act of infraction to the duty of care that implies affective abandonment due to the damage that results from it and the extent of it, that is valued in the concrete case.

Teachers are the motivating force and role models for many learners in our schools around the country. They take on the role of teacher, parent, diplomat, doctor, police officer, confidant, nanny, disciplinarian and moral compass, among other roles. They are vilified and slated in our media and are often the scapegoats for perceived ills, real or otherwise, found in our schools, to the detriment of the image of the profession. This is especially true where teachers and schools do not have a clear direction and clarity on what their duty of care is as regards truancy, safety and the pastoral role towards learners in our schools. Legislation provides a legal framework for this study, starting with the Constitution of the Republic of South Africa, and the legal dimensions include the Bill of Rights, various legislative Acts, common law and case law, with terms such as the in loco parentis principle also included, which govern the teacher’s duty of care for learners. The duty of care places an obligation on the teacher in a legal sense through the duty imposed by law, and in the professional sense through the expectation placed on the teacher through the employment contract that the teacher has with the Department of Basic Education. The literature suggests that truancy of learners has many causes and that teachers could be a contributing factor to the causes. Several contributions have been made regarding safety and discipline of learners in schools in South Africa. However, not much appears to have been done in this country to determine the causes of truancy and whether teachers have an influence on its occurrence in schools. The relevant literature further suggests that the social aspects that influence truancy are not clear. The question arises whether teachers should interrogate the social aspects to determine their influence on a case of truancy. The purpose of this study was therefore to determine the legal interpretation of the teachers’ duty of care with regard to truancy of learners. A qualitative approach was used for the study. Semi-structured interviews were conducted at schools and with a lawyer and a judge to determine how they view this duty of care in schools, whether pastoral care is practised, and if teachers realise the extent of the law as regards negligence, and their duty as regards truancy especially. The interpretive paradigm would, through the semi-structured interviews, reveal how schools view the duty of care and pastoral care, as well as truancy in schools. The main causes and the extent of truancy in schools, the guidance and support that teachers can expect from the Department of Education to fulfil the seven duties or roles that are expected from teachers in the National Education Policy Act (1996), as well as the common-law duty of in loco parentis, would become clearer. The interviews provided data that no person is above the law and that ignorance of the law is no excuse. The study could be helpful to schools, the Department of Education and universities that train teachers, to include more training on specific issues and case studies involving education law and the duties of teachers, from both a legal and a professional perspective. The Department of Basic Education could find it helpful in monitoring and control at schools about matters involving discipline, safety and care of learners, and the duties of teachers at schools. Although teachers may know something about the duty of care or have heard about it, they are in the dark regarding the interpretation of the legal requirements and the repercussions that could flow from that duty. The second conclusion is that pastoral care appears to be doing well in schools although teachers are under pressure with the implementation of the new syllabus. The third conclusion is that truancy is rife in high schools and that two of the causes, drugs and pregnancy, are chiefly to blame for it and must be addressed. Fourthly, the social structure and the environment in the family should be looked into to try to reduce truancy. The study provides a legal interpretation of the teacher’s duty of care owed to learners, specifically regarding truancy and its causes. It will mean making a contribution to the body of knowledge that will include, but not be limited to, the insight gained by a look into the life world of the teacher regarding learner truancy, as well as taking a factual journey through the courts, discussing cases brought before them. # Onderwysers dien as rolmodelle en bron van motivering vir baie leerders in ons skole landwyd. Hulle vervul die rol van onderwyser, ouer, diplomaat, dokter, polisiebeampte, vertroueling, kinderoppasser, tugmeester en morele kompas, om maar ʼn paar te noem. Hulle word dikwels in die media swart gesmeer, gekritiseer en as sondebokke voorgehou vir gewaande of werklike ongerymdhede wat in ons skole plaasvind, baie keer tot nadeel van die beeld van die beroep. Dit kom veral voor wanneer onderwysers en skole nie duidelike leiding het oor wat hulle sorgsaamheidsplig is rakende stokkiesdraai, veiligheid en hul pastorale rol teenoor leerders in ons skole nie. Wetgewing voorsien ʼn regsraamwerk vir hierdie studie. Dit begin by die Grondwet van die Republiek van Suid Afrika wat die Handves van Menseregte omvat, en sluit in verskillende ander wette sowel as die gemene en regspraak. Die wetgewing inkorporeer konsepte soos die in loco parentisbeginsel, wat die sorgsaamheidsplig van onderwysers jeens leerders omskryf. Die sorgsaamheidsplig plaas ‘n regsverpligting op die onderwyser kragtens die wetgewing, tesame met die beroepsvereistes van die dienskontrak met die Departement van Basiese Onderwys. Die literatuur dui daarop dat daar talle redes is waarom leerders stokkies draai en dat onderwysers moontlik ‘n bydraende faktor kan wees. Verskeie bydraes is gelewer ten opsigte van die veiligheid en dissipline van leerders in skole in Suid-Afrika. Dit wil egter voorkom asof daar nog nie veel in die land nagevors is om die oorsake van stokkiesdraaiery te bepaal en of onderwysers ‘n invloed op die voorkoms daarvan in skole het nie. Die betrokke literatuur dui verder daarop dat die sosiale aspekte wat stokkiesdraaiery beїnvloed, nie duidelik is nie. Die vraag ontstaan nou of onderwysers sosiale aspekte moet ondersoek om hulle invloed op ‘n stokkiesdraai-geval te bepaal. Die doel van die studie was om die wetlike interpretasie van die sorgsaamheidsplig van onderwysers teenoor leerders wat stokkiesdraai, te ondersoek. ‘n Kwalitatiewe benadering is gebruik vir hierdie studie. Semi-gestruktureerde onderhoude is gevoer by skole en met ‘n regsgeleerde en ‘n regter om te bepaal wat hulle opvatting van die sorgsaamheidsplig in skole is, of pastorale sorg toegepas word en of onderwysers besef wat is die omvang van die wet ten opsigte van nalatigheid en spesifiek hulle plig ten opsigte van stokkiesdraaiery. Hierdie interpretatiewe paradigma bepaal, deur middel van die semi-gestruktureerde onderhoude, wat skole se opvattings van die sorgsaamheidsplig en pastorale sorg is, en ook jeens stokkiesdraaiery in skole. Dit kan ook lig werp op watter leiding en ondersteuning onderwysers van die Onderwysdepartement kan verwag om die sewe pligte of rolle van onderwysers wat in die Wet op Nasionale Onderwysbeleid (1996) omskryf word, te kan vervul, asook die gemeneregsplig van in loco parentis. Die onderhoude lewer ook data op wat aantoon dat geen mens bo die reg verhewe is nie en dat onkunde aangaande die reg nie ‘n verskoning is nie. Hierdie studie behoort nuttig te wees vir skole, die Onderwysdepartement en universiteite wat onderwysers oplei, om meer opleiding te verskaf oor spesifieke aspekte en gevallestudies aangaande onderwysreg en die pligte van opvoeders vanuit beide ʼn regsoogpunt en ʼn professionele oogpunt. Die Departement van Basiese Onderwys kan dit nuttig vind in monitering en beheer by skole met betrekking tot dissipline, veiligheid en sorg van leerders, en die pligte van onderwysers by skole. Dit blyk dat, alhoewel onderwysers moontlik iets weet of al gehoor het van die sorgsaamheidsplig, hulle min weet van die wetlike vereiste en die uitwerking daarvan op die plig. Die tweede gevolgtrekking is dat pastorale sorg in skole oënskynlik goed toegepas word alhoewel onderwysers onder druk verkeer met die uitvoering van die nuwe kurrikulum. Die derde gevolgtrekking is dat stokkiesdraaiery algemeen voorkom in die hoërskool en dat dwelms en swangerskap twee hoofoorsake is wat aandag moet kry. Vierdens, moet die sosiale struktuur en die gesinsomgewing ondersoek word om stokkiesdraaiery te probeer verminder. Hierdie studie verskaf ‘n wetlike vertolking van die sorgsaamheidsplig van onderwysers teenoor leerders, spesifiek rakende stokkiesdraai en die oorsake daarvan. Dit lewer ook ‘n bydrae tot die korpus van kennis, onder meer oor die insigte wat die ondersoek verleen in die lewenswêreld van die onderwyser teenoor leerders wat stokkies draai. Ten slotte onderneem dit ‘n feitlike reis deur sommige hofsake oor hierdie kwessie. / Thesis (PhD)--University of Pretoria, 2013. / lk2014 / Education Management and Policy Studies / PhD / Unrestricted

In the recent past South Africa saw an increase in participation in school sport concomitant with an increase in litigation awareness in society. Legal accountability based on damage suffered in the participation in sport has become more common, introducing an additional dimension to risk management by the educator. Learner safety is one of the key aspects in a school. Educator accountability with regard to the safety of learners in school sports is a focus of attention. An effective risk management programme to limit injuries and risks to participants in school sports must be developed. Risk management is the prime instrument by which injuries and the potential exposure of the educator or school to damage and legal accountability can be reduced or prevented. Some aspects of legal risk management are crucial for the educator's duty of care during coaching and the educator's legal duty with regard to the participants' safety. The educator must possess enough legal knowledge to successfully carry out his duty of care. This research will critically assess the safety strategies and the legal risk management of participation in school sports in South Africa. To be able to do this, I determined which common-law and legally accountable determinants can be applicable and what role they will play to ensure the safety of learners in schools. Firstly a literature study in legal risk management in school sports was done. This study found that the educator's responsibilities and obligations are determined by common-law and case law determinants. An empirical investigation was launched. Interviews were conducted with educators involved in sports in the Dr Kenneth Kaunda district of the North-West Province. The topic was the current state of affairs in risk management in school sport. The participants' perceptions of legal risk management were discussed and their views analysed, whereupon findings and recommendations were made. The general impression based on the results was that the educators experience huge uncertainty and are seriously uninformed about with regard to delictual liability towards learners under their care. It was found that educators do not have sufficient legal knowledge to comply with the requirements set by law. Therefore the security of the participants (on grounds of their participation) and the educators (on grounds of their legal accountability) is jeopardised. It is recommended that all tertiary institutions develop training programmes to empower educators and student educators with knowledge of legal procedures in education. It is further recommended that the education department as employer together with governing bodies, principals and trade unions support such training programmes- now and in the future. Finally, educators, school management teams and governing bodies should be more risk-aware and more pro-active in preventing sport-related injuries, because of the ignorance regarding guidelines for risk management in sports and standards of security. The complex nature of our society makes knowledge of the legal aspects in education by all role players in education not only desirable, but mandatory. / MEd (Education Law), North-West University, Potchefstroom Campus, 2012

In the recent past South Africa saw an increase in participation in school sport concomitant with an increase in litigation awareness in society. Legal accountability based on damage suffered in the participation in sport has become more common, introducing an additional dimension to risk management by the educator. Learner safety is one of the key aspects in a school. Educator accountability with regard to the safety of learners in school sports is a focus of attention. An effective risk management programme to limit injuries and risks to participants in school sports must be developed. Risk management is the prime instrument by which injuries and the potential exposure of the educator or school to damage and legal accountability can be reduced or prevented. Some aspects of legal risk management are crucial for the educator's duty of care during coaching and the educator's legal duty with regard to the participants' safety. The educator must possess enough legal knowledge to successfully carry out his duty of care. This research will critically assess the safety strategies and the legal risk management of participation in school sports in South Africa. To be able to do this, I determined which common-law and legally accountable determinants can be applicable and what role they will play to ensure the safety of learners in schools. Firstly a literature study in legal risk management in school sports was done. This study found that the educator's responsibilities and obligations are determined by common-law and case law determinants. An empirical investigation was launched. Interviews were conducted with educators involved in sports in the Dr Kenneth Kaunda district of the North-West Province. The topic was the current state of affairs in risk management in school sport. The participants' perceptions of legal risk management were discussed and their views analysed, whereupon findings and recommendations were made. The general impression based on the results was that the educators experience huge uncertainty and are seriously uninformed about with regard to delictual liability towards learners under their care. It was found that educators do not have sufficient legal knowledge to comply with the requirements set by law. Therefore the security of the participants (on grounds of their participation) and the educators (on grounds of their legal accountability) is jeopardised. It is recommended that all tertiary institutions develop training programmes to empower educators and student educators with knowledge of legal procedures in education. It is further recommended that the education department as employer together with governing bodies, principals and trade unions support such training programmes- now and in the future. Finally, educators, school management teams and governing bodies should be more risk-aware and more pro-active in preventing sport-related injuries, because of the ignorance regarding guidelines for risk management in sports and standards of security. The complex nature of our society makes knowledge of the legal aspects in education by all role players in education not only desirable, but mandatory. / MEd (Education Law), North-West University, Potchefstroom Campus, 2012

Diploma thesis - abstract Due managerial care and diligence as a criterion for the determination of liability (a legal and comparative analysis) Lucie Krtoušová The purpose of this thesis is to critically analyse the interpretation of the concept of the due managerial care and diligence and consider the requirements that a director must comply with. The method used in this paper is the comparative analysis. As a basis of the comparative analysis it is chosen the British concept of fiduciary duties and duty of care, skill and diligence which is compared with the Czech concept of the care of a prudent manager. The thesis is composed of five chapters, each of them dealing with different aspects of the concept of the due managerial care and diligence. Chapter One is introductory and defines basic terminology used in the thesis such as the director, the care of a prudent manager, the duty of loyalty, fiduciary duties and the duty of care, skill and diligence. Chapter Two examines the British concept of fiduciary duties. The chapter consists of five parts. Part One focuses on introduction into the system of general duties of directors. Part Two explains the fiduciary position of a director. Part Three and Four address the two aspects of the duty of loyalty, i.e. the duty to act in the interest of the company and...

IN ENGLISH The purpose of this paper is to analyse all segments of the duty of due managerial care of member of an elective body of a limited company and propose de lege ferenda approach to segments of the duty. Another goal of this master's thesis was to examine new business judgment rule and present an alternative British model of the rule. To provide a comparative approach the paper utilizes the British company law approach. The first chapter introduces the origin of the duty of due managerial care, in particular its roots in Roman law and Austrian civil code. The second chapter is divided into five subchapters. The first subchapter highlights the recent changes to the duty of due managerial care after recodification of private law. The second subchapter examines duty of care as one of two integral parts of the duty of due managerial care. Firstly, it analyzes the quality of care expected of directors. Secondly, it focuses on the test for determination of necessary standard of care. Thirdly, following a critical examination of the test for determination of a standard of care, the paper suggests de lege ferenda test of due care. Finally, the first subchapter considers the British duty of care, skill and diligence. The third subchapter covers the duty of loyalty including duties derived from it...

IN ENGLISH Criminal liability for breach of the duty of due managerial care The aim of this thesis is to analyze the duty of due managerial care and its attributes for the members of the statutory bodies of the capital companies including the rule of entrepreneurial judgment, the instructions of the General Meeting, the delegation of powers of the statutory body of entrepreneurial judgment and the criminal law aspects of the violation of the care of a goodman. The diploma thesis consists of four chapters. The first chapter briefly describes the basic issues of capital companies. The second chapter deals with the duty of due managerial care of the statutory bodies of capital companies and its attributes, emphasizing the changes brought about by the recodification of private law. First, the duty of loyalty is analyzed, as one of the basic stones of duty of care of a good manager, then attention is paid to the expected care and the approach of its definition. The third chapter deals with general parts of criminal law, which first deals with the possibility of using criminal law, and the attention is then paid to the subjective side and unlawful circumstances. The circumstance of exclusion of illegality is highlighted by a mistake, especially in the context of expert advice, by its influence on...