Submitted by Marlene Aparecida de Souza Cardozo (mcardozo@pucsp.br) on 2016-11-24T12:35:17Z No. of bitstreams: 1 Pedro Flávio Cardoso Lucena.pdf: 1178242 bytes, checksum: 1f44a9a7e639632dd100e48125ec0c6d (MD5) / Made available in DSpace on 2016-11-24T12:35:17Z (GMT). No. of bitstreams: 1 Pedro Flávio Cardoso Lucena.pdf: 1178242 bytes, checksum: 1f44a9a7e639632dd100e48125ec0c6d (MD5) Previous issue date: 2016-10-18 / Conselho Nacional de Desenvolvimento Científico e Tecnológico / The aim of the current paper is the legal regime of administrative silence. The legal bonds established between the Estate and the citizen are formalized, as a rule, by means of administrative procedures. In such way, once the applicant sends a requirement to the Public Administration and yet has no reply, it occurs what is nominated in the legal theory as: administrative silence. Considering both the effects inherent to such silence in the pragmatic scope of Brazilian Law and the discussions that arose in the core of Science, the research is justified by the aim of contributing with the evolution of an accurate understanding of the theme. The applied assessment is based on a dogmatic conception i.e.: the Federal Constitution of 1988 as the supreme norm to national legal system. From that conception it was formulated as a requirement inherent to the research the idea that the relationships developed within the Brazilian legal system occur from the demand of constitutional rational legal argumentations which support the decisions inherent to legislative, executive and legal estate functions constructed by systemic regulation as in a “chain novel”. Once administrative silence was properly investigated, it was demonstrated the differentiation among legal fact, legal act and desinent effects of the legal act, which leads to the conclusion that administrative silence has actually the legal nature of a legal fact. Due to its nature it was argued that administrative silence may generate effects from two legal scopes: the scope of legality and the scope of juridicity. Such effects, constructed through normative logical formulation, arise from measuring activities of public interests performed in the exercise of the functions of state. As a follow-up it was checked the effects of both positive and negative effects of administrative silence and they were related with the rules and principles of the Brazilian Legal Framework. Then it was obtained the main conclusion of the research: such effects must be interpreted as benefits to the applicant for, in the Brazilian Legal System there is no legal argumentative support to administrative silence. Lastly it was carried a study on the control of the administrative silence in the scope of the three functions of the Estate, taking the conclusion obtained beforehand as a premise / O objeto do presente estudo é o regime jurídico do silêncio administrativo. As relações jurídicas estabelecidas entre o Estado e o cidadão são formalizadas, em regra, por meio de processos administrativos. Desta forma, quando o administrado realiza requerimento à Administração Pública, sem, contudo, obter resposta, ocorre o que se denomina na doutrina de “silêncio administrativo”. Tendo em vista os efeitos inerentes ao silêncio no âmbito pragmático do Direito brasileiro, bem como as discussões formadas no âmago da Ciência, a pesquisa se justifica na intenção de contribuir com a evolução da compreensão acurada do tema. O exame empreendido parte de uma concepção dogmática, qual seja: a Constituição Federal de 1988, enquanto norma suprema do ordenamento jurídico nacional. A partir de então, formulou-se – como pressuposto inerente à pesquisa – a ideia de que as relações firmadas no conjunto normativo brasileiro ocorrem mediante a exigência de argumentações jurídicas racionais constitucionais. Estas sustentam as decisões inerentes às funções estatais legislativa, executiva e judiciária – construídas mediante ordenação sistêmica, tal qual um “romance em cadeia”. Passando propriamente à investigação do silêncio administrativo, demonstrou-se a diferenciação entre fato jurídico, ato jurídico e efeitos desinentes do ato jurídico – firmando-se a conclusão de que o silêncio administrativo, em realidade, tem natureza jurídica de fato jurídico. Em razão de sua natureza, argumentou-se que o silêncio administrativo pode gerar efeitos a partir de dois âmbitos normativos: o âmbito da legalidade e o âmbito da juridicidade. Tais efeitos, construídos mediante uma formulação lógica normativa, surgem a partir de atividades ponderativas de interesses públicos realizadas no exercício das três funções estatais. Em continuação, averiguaram-se os efeitos do silêncio administrativo – positivos e negativos – relacionando-os com regras e princípios do ordenamento jurídico pátrio. Então, obteve-se a conclusão principal da pesquisa: tais efeitos devem ser interpretados como benefícios ao administrado, pois, no sistema normativo brasileiro, não há suporte argumentativo jurídico para o silêncio administrativo. Finalmente, passou-se ao estudo do controle do silêncio administrativo nas três esferas de funções do Estado, tomando como premissa a conclusão aduzida

`Organ of state' as a constitutional concept was first introduced by the 1993 Constitution, in which it was defined as including any statutory body or functionary. In their interpretation of this notion, the courts and academic writers invoked the tests developed at common law in order to determine its meaning. The commentators, on the one hand, used a variety of tests. The courts, on the other hand, subscribed to what has come to be known as the `control test'. The 1996 Constitution followed with a comprehensive definition of `organ of state'. This notion is also employed in other laws by direct reference or incorporation of the definition in section 239 with slight adjustments. Regrettably, the limited approach developed by the court in their interpretation of the notion of `organ of state' for the purposes of the 1993 Constitution has spilled over to the interpretation of the concept under the 1996 Constitution. The question is whether this is justifiable. The constitutional definition of `organ of state' makes it clear that other institutions and functionaries are organs of state on the basis of what they are and others by virtue of the functions they are engaged in. Therefore strict adherence to the control test or any other test could unjustifiably limit the application of the Constitution. / Jurisprudence / LL.M.

Environmental positive externalities from public provision, such as the benefits yielded from the public measure of nature conservation, are often not internalized. Potential sub-optimal public service provision can be expected from such a condition, leading to inefficiency, if the benefits at a greater territorial scale are not acknowledged. This holds particularly true for intergovernmental fiscal relations in a decentralizing multi-tiered governmental system. Moreover, in developing countries the fiscal capacities to perform measures of ecological public functions are limited with their fiscal needs for these functions often appearing to outweigh their fiscal capacities. Research at the interface of the economic theory of fiscal federalism, the sustainability concept, and policies related to conservation and the environment is relatively new. Furthermore, in the literature on environmental federalism the emphasis tends to be comparatively less on the benefits of positive environmental externalities. The essential contribution of this study is an extension of this research field that is still in its infancy by applying the specific case of Indonesia as the context, on account of this tropical country‟s ecological significance as well as its recent developments during the fiscal decentralization process. The overall aim of this study is to assess the possibilities of ecological fiscal transfers as a set of instruments in the public sector to internalize environmental externalities. To this end, the study traces the development as well as the current state of intergovernmental fiscal transfers in Indonesia in terms of ecological purposes. On the basis of this knowledge, the study offers new policy perspectives by proposing a number of policy options for ecological fiscal transfers in the context of the functioning fiscal transfer system and institutions between the national and the subnational (province and local) governments as well as among jurisdictions at the same governmental level. The incorporation of an explicit ecological indicator into general-purpose transfers is the first option. The second option is derived from a revenue-sharing arrangement. In this arrangement, two sub-options are proposed: first, shared revenues from taxes are distributed on the basis of the ecological indicator and, second, shared revenues from natural resources are earmarked for environmental purposes. Finally, the third option suggests an extension of existing specific-purpose transfers for the environment. The potential and limitations of the respective options are addressed. Additionally, a short treatment is given to the discourse on the possible mobilization of fiscal resources in the context of tropical deforestation and global climate change. The research concentrates mainly on the first option, namely the incorporation of an ecological indicator into the structure of general-purpose transfer allocation. In order to substantiate an explicit ecological dimension in the transfer, it extends the present area-based approach by introducing a protected area indicator while maintaining the remaining socio-economic indicators in the fiscal need calculation. The parameter values of area-related indicators are adjusted and subject to the properties of the existing formula. The simulation at the provincial level yields the following results. First, more provinces lose rather than gain from the introduced ecological fiscal transfer when compared to the fiscal transfer that they received in the reference fiscal year. Second, on average the winning provinces obtain a higher level of transfer from the introduction of an ecological indicator in the fiscal need calculation. The extent of the average decreases for the losing provinces, however, it is lower compared to the extent of the average gain by their winning counterparts. In terms of spatial configurations of the general-purpose transfer with an ecological indicator, provinces in Papua would benefit most from the new fiscal regime whereas provinces in Java and Sulawesi, with a few exceptions, would suffer a transfer reduction. Kalimantan and Sumatera show a mixed pattern of winning and losing provinces. The analysis on the equalization effects of the general-purpose transfers makes the following important contributions. It suggests that, first, the transfers are equalizing and, second, the introduction of the protected area indicator into the structure of these transfers plays a significant role in the equalizing effect, particularly in the presence of provinces with a very high fiscal capacity and when the area variable is also controlled. All of these new insights are imperative in the design of fiscal policy which intends to integrate explicit ecological aspects into the instruments of intergovernmental fiscal transfers. Since a formula-based fiscal transfer distribution is intrinsically zero-sum, the aforementioned configuration of winning and losing jurisdictions is conceivable. Among other future perspectives, it is the task of further research to explore ecological fiscal transfer instruments and associated measures that on the one hand seek to induce the losing provinces to join their winning counterparts and, on the other hand, are still subject to the requirements of the rational fiscal transfer mechanism.

`Organ of state' as a constitutional concept was first introduced by the 1993 Constitution, in which it was defined as including any statutory body or functionary. In their interpretation of this notion, the courts and academic writers invoked the tests developed at common law in order to determine its meaning. The commentators, on the one hand, used a variety of tests. The courts, on the other hand, subscribed to what has come to be known as the `control test'. The 1996 Constitution followed with a comprehensive definition of `organ of state'. This notion is also employed in other laws by direct reference or incorporation of the definition in section 239 with slight adjustments. Regrettably, the limited approach developed by the court in their interpretation of the notion of `organ of state' for the purposes of the 1993 Constitution has spilled over to the interpretation of the concept under the 1996 Constitution. The question is whether this is justifiable. The constitutional definition of `organ of state' makes it clear that other institutions and functionaries are organs of state on the basis of what they are and others by virtue of the functions they are engaged in. Therefore strict adherence to the control test or any other test could unjustifiably limit the application of the Constitution. / Jurisprudence / LL.M.

[pt] A presente dissertação buscou, por meio da análise de casos concretos e do estudo da evolução histórica das Constituições brasileiras, apresentar como as controvérsias sobre o instituto do foro por prerrogativa de função determinam e são determinadas pelas decisões do Supremo Tribunal Federal. Embora costumeiramente o debate público associe o foro distintivo à impunidade e ao incentivo à corrupção, o que pode ser muito bem resumido pelo frequente uso não técnico da expressão foro privilegiado, é possível enxergar esse instituto como importante ferramenta de essencial proteção dos mandatos eletivos. Elaborado para ser um obstáculo às perseguições contra autoridades políticas, também atua para evitar que a influência dessas mesmas autoridades seja revertida em indevida proteção pelo Poder Judiciário. A ausência de soluções fáceis para os dilemas processuais penais relativos ao tratamento jurisdicional em matéria criminal dispensado às autoridades políticas é um fato e, não por acaso, identificou-se a existência de soluções originais e particulares para a questão em diferentes países latino-americanos e potências globais. O recorte da dissertação se revela pela análise de ações penais julgadas ou em transcurso no Supremo Tribunal Federal e permite observar como a oscilação da interpretação da Corte sobre as regras desse instrumento legal reduz o grau de certeza e previsibilidade nas delicadas acusações criminais contra as autoridades políticas do país. Essa incerteza que, incentivada pelas decisões da própria Suprema Corte, acaba por configurar significativa insegurança ao regime democrático, poderia ser sanada com a edição de norma constitucional mais clara e com a cessação das reiteradas tentativas da Suprema Corte de reformar normas constitucionais e infraconstitucionais por meio de ampliações expansivas de sua interpretação. A mais importante e recente decisão da Suprema Corte para a matéria, oferecida nos autos da Questão de Ordem na Ação Penal 937, propiciou uma série de novidades nos seus regramentos. Na visão do autor, embora tais nuances tenham atingido a meta principal de reduzir os trabalhos do Supremo em sua competência criminal originária, não ofereceram esclarecimentos suficientes para que se considerem seguras as interpretações sobre o tema. / [en] This paper aims at presenting, by the analyzes of actual cases and the study of the historical evolution of Brazilian constitutions, the ways the controversial disputes around the legal instrument known as privileged jurisdiction due to public function prerogatives impact the Brazilian Supreme Court (STF) participation in the country s democratic political process. The public has usually related this constitutional safeguard to impunity and incentive to corruption, which has been summarized over the years by the popular usage of the non-technical, shortened term privileged jurisdiction (foro privilegiado). However, it is possible to acknowledge it as an important tool for the essential protection of elected mandates. Designed to be an obstacle to the persecution of political authorities, the instrument is also intended to avoid authorities misuse of their rights against Justice. The absence of easy solutions for criminal processual dilemmas related to the jurisdictional treatment of criminal matters concerning political authorities is a fact. It is no coincidence there are various examples of original and special solutions dealing with the matter throughout Latin America as well as in other global powers. The time frame of the study presents criminal procedures recently tried or in process at the Federal Supreme Court. These court actions allow us to notice the oscillation in the Court’s interpretation of the rules of the legal instrument which in turn allows less certainty and predictability concerning the delicate criminal accusations against political authorities in the country. This uncertainty, which is encouraged by the Court s decisions, ends up establishing a significant level of insecurity for the democratic regime in Brazil. That could be easily avoided by the setting of a more objective constitutional rule for the subject and by the ceasing of STF’s repetitive attempts to reform constitutional ruling or other legislation by means of expanded interpretations on the matter. The most recent decision on the subject by STF is found in the Question of Order in Criminal Procedure 937, which brought changes for the ruling of the matter. In the author s opinion, the changes reached their goal of lowering the number of cases reaching the Supreme Court, more accordingly with its original competence, however, they did not clarify important issues so as to guarantee consensus about their interpretation.

Environmental positive externalities from public provision, such as the benefits yielded from the public measure of nature conservation, are often not internalized. Potential sub-optimal public service provision can be expected from such a condition, leading to inefficiency, if the benefits at a greater territorial scale are not acknowledged. This holds particularly true for intergovernmental fiscal relations in a decentralizing multi-tiered governmental system. Moreover, in developing countries the fiscal capacities to perform measures of ecological public functions are limited with their fiscal needs for these functions often appearing to outweigh their fiscal capacities. Research at the interface of the economic theory of fiscal federalism, the sustainability concept, and policies related to conservation and the environment is relatively new. Furthermore, in the literature on environmental federalism the emphasis tends to be comparatively less on the benefits of positive environmental externalities. The essential contribution of this study is an extension of this research field that is still in its infancy by applying the specific case of Indonesia as the context, on account of this tropical country‟s ecological significance as well as its recent developments during the fiscal decentralization process. The overall aim of this study is to assess the possibilities of ecological fiscal transfers as a set of instruments in the public sector to internalize environmental externalities. To this end, the study traces the development as well as the current state of intergovernmental fiscal transfers in Indonesia in terms of ecological purposes. On the basis of this knowledge, the study offers new policy perspectives by proposing a number of policy options for ecological fiscal transfers in the context of the functioning fiscal transfer system and institutions between the national and the subnational (province and local) governments as well as among jurisdictions at the same governmental level. The incorporation of an explicit ecological indicator into general-purpose transfers is the first option. The second option is derived from a revenue-sharing arrangement. In this arrangement, two sub-options are proposed: first, shared revenues from taxes are distributed on the basis of the ecological indicator and, second, shared revenues from natural resources are earmarked for environmental purposes. Finally, the third option suggests an extension of existing specific-purpose transfers for the environment. The potential and limitations of the respective options are addressed. Additionally, a short treatment is given to the discourse on the possible mobilization of fiscal resources in the context of tropical deforestation and global climate change. The research concentrates mainly on the first option, namely the incorporation of an ecological indicator into the structure of general-purpose transfer allocation. In order to substantiate an explicit ecological dimension in the transfer, it extends the present area-based approach by introducing a protected area indicator while maintaining the remaining socio-economic indicators in the fiscal need calculation. The parameter values of area-related indicators are adjusted and subject to the properties of the existing formula. The simulation at the provincial level yields the following results. First, more provinces lose rather than gain from the introduced ecological fiscal transfer when compared to the fiscal transfer that they received in the reference fiscal year. Second, on average the winning provinces obtain a higher level of transfer from the introduction of an ecological indicator in the fiscal need calculation. The extent of the average decreases for the losing provinces, however, it is lower compared to the extent of the average gain by their winning counterparts. In terms of spatial configurations of the general-purpose transfer with an ecological indicator, provinces in Papua would benefit most from the new fiscal regime whereas provinces in Java and Sulawesi, with a few exceptions, would suffer a transfer reduction. Kalimantan and Sumatera show a mixed pattern of winning and losing provinces. The analysis on the equalization effects of the general-purpose transfers makes the following important contributions. It suggests that, first, the transfers are equalizing and, second, the introduction of the protected area indicator into the structure of these transfers plays a significant role in the equalizing effect, particularly in the presence of provinces with a very high fiscal capacity and when the area variable is also controlled. All of these new insights are imperative in the design of fiscal policy which intends to integrate explicit ecological aspects into the instruments of intergovernmental fiscal transfers. Since a formula-based fiscal transfer distribution is intrinsically zero-sum, the aforementioned configuration of winning and losing jurisdictions is conceivable. Among other future perspectives, it is the task of further research to explore ecological fiscal transfer instruments and associated measures that on the one hand seek to induce the losing provinces to join their winning counterparts and, on the other hand, are still subject to the requirements of the rational fiscal transfer mechanism.