Made available in DSpace on 2014-07-29T15:25:11Z (GMT). No. of bitstreams: 1 Dissertacao Roberto Elito dos Reis Guimaraes.pdf: 2788451 bytes, checksum: c2fbd88afbf2662f0cd2f738836144cb (MD5) Previous issue date: 2012-02-27 / The Item III of art. 20 of the Federal Constitution of 1988 prescribes that belong to the Union lakes, rivers and streams in any of its land area, or bathing more than one state, that serve as boundaries with other countries, or extending or come from a foreign country, referring also to marginal lands. However, INCRA, in fulfillment of its institutional role, over the past decades, many homeowners expropriated rural areas which are bounded by water bodies federal domain, indemnifying the land that tangent referred to water resources. Aiming to analyze the performance of INCRA in the State of Goiás, it was a collection of data and information before the Regional Heritage Management in Goiás Union concerning the federal rivers that bathe the State and their marginal lands. He got up data also at the regional superintendents of INCRA in the State of Goiás (SR-04 and SR-28/DFE) in order to identify the property expropriated, whose areas have focused on marginal lands and rivers federal compensation if there was this track marginal. The research was conducted under a qualitative approach, resorting to the legal sources, doctrine and jurisprudence relating to the object of study, having as the main landmark constitutional parental rights, past and current, moving also infra corresponding standards. In light of legal dogmatics in its contemporary design, the equalization of legal antinomies and collision of principles evident in the rulings sympathetic to the issue came to the conclusion that the criterion of the navigability of water bodies is no more restrictive element to indicate the dominion Union on marginal lands mentioned in the section III, art. 20, CF/1988. Likewise, it is not the INCRA indemnify the particular strip of land of rivers federal marginal land taken by expropriation in such land, as such land under the 1988 Constitution came into the realm of the Union The case study indicated that 41 of the Settlement Projects in Goiás Incra forming limits with federal bodies of water such marginal land water bodies were not excluded from the amount of compensation to the expropriated owner / O Inciso III, do art. 20, da Constituição Federal de 1988 prescreve que são bens da União os lagos, os rios e quaisquer correntes de água em terrenos de seu domínio, ou que banham mais de um Estado, que servem de limites com outros países, ou que se estendam ou provenham de território estrangeiro, referindo-se também aos terrenos marginais. No entanto, o INCRA, no cumprimento de sua função institucional, ao longo das últimas décadas, desapropriou muitos imóveis rurais cujas áreas limitam-se com corpos d'água de domínio federal, indenizando os terrenos que tangenciam referidos recursos hídricos. Objetivando analisar a atuação do INCRA no Estado de Goiás, fez-se um levantamento de dados e informações perante a Gerência Regional do Patrimônio da União em Goiás referente aos rios federais que banham esse Estado e seus respectivos terrenos marginais. Levantou-se dados também junto às Superintendências Regionais do Incra no Estado de Goiás (SR-04 e SR-28/DFE) no sentido de se identificar os imóveis desapropriados, cujas áreas incidiram em terrenos marginais de rios federais e se houve indenização dessa faixa marginal. A pesquisa foi desenvolvida sob uma abordagem qualitativa, recorrendo-se às fontes legais, doutrinárias e jurisprudenciais referentes ao objeto do estudo, tendo como marco principal o ordenamento constitucional pátrio, pretérito e vigente, transitando também pelas normas infraconstitucionais correspondentes. À luz da dogmática jurídica, na sua concepção contemporânea; da equalização das antinomias jurídicas e colisão de princípios evidenciados nos normativos afetos ao tema chegou-se à conclusão que o critério da navegabilidade dos corpos d'água não é mais elemento restritivo para indicar a dominialidade da União sobre os terrenos marginais a que alude o inciso III, art. 20, CF/1988. No mesmo sentido, não cabe ao INCRA indenizar ao particular a faixa de terra marginal de rios federais nas desapropriações agrárias colhidas por tais terrenos, visto que referidos terrenos, por força da Constituição de 1988 passaram para o domínio da União. O estudo de caso indicou que dos 41 Projetos de Assentamento do Incra em Goiás que fazem limites com corpos d'água federais os terrenos marginais desses corpos d'água não foram excluídos do montante da indenização ao proprietário expropriado.

The word expropriation is used in South Africa to describe the process whereby a public authority or institution takes property from a private person for public purposes against payment of compensation. The current Act regulating expropriations in South Africa is known as the Expropriation Act 63 of 1975. However, it has three primary inconsistencies with the Constitution. Firstly it predates the Constitution - therefore, it does not infuse the values of equality, human dignity and the achievement of freedom. Secondly it is not consistent with comparable modem statutes elsewhere in the world. The last issue is that this Act is inconsistent with the Constitution in the sense that the Act only provides for expropriation for public purposes and the Constitution provides for expropriation in the public interest as well as for a public purpose. For these reasons it is crucial to establish a new legislative framework. In an attempt to rectify the above difficulties, an expropriation policy and a draft Bill were introduced. The primary purpose of the Bill is to harmonise the considerable amount of legislation in South Africa on the subject of expropriation, and to fill the gaps of the current Act. However, the new proposed Bill was referred back to cabinet as it had various difficulties. According to newspaper commentators, one of these reasons was that market value would not be used when determining the amount of compensation. This is not true, as market value is one of the listed factors in section 25(3) of the Constitution, and it is provided for in the Bill. Another reason was that the role of the courts will also be restricted in the new Bill. Parties will no longer be able to refer disputes concerning the amount of compensation to court. Once again this is not true, the courts role is only restricted in the sense that it would no be able to determine the amount of compensation as provided for in the Constitution, but will only be allowed to approve or decline the amount the Minister determined. This is one of the aspects that may be debatable constitutionally. After an in-depth study of the proposed Bill, the author came to the conclusion that there are actually only three aspects that might be unconstitutional namely; the definition of public interest which is to be included that widens the capacity to expropriate; departure from the notice procedure; and the fact that the courts may no longer determine the amount of compensation, but only approve or decline. Expropriation is one of the most important tools to speed up land reform in South Africa, and it is, therefore, of the utmost importance that the procedure must take place in a fair, equitable and constitutional manner. The purpose of this study will be to identify the aspects which result in expropriations that is not done on this basis, to scrutinize them and to make recommendations to these aspects. / Thesis (LL.M. (Law)--North-West University, Potchefstroom Campus, 2009.

The word expropriation is used in South Africa to describe the process whereby a public authority or institution takes property from a private person for public purposes against payment of compensation. The current Act regulating expropriations in South Africa is known as the Expropriation Act 63 of 1975. However, it has three primary inconsistencies with the Constitution. Firstly it predates the Constitution - therefore, it does not infuse the values of equality, human dignity and the achievement of freedom. Secondly it is not consistent with comparable modem statutes elsewhere in the world. The last issue is that this Act is inconsistent with the Constitution in the sense that the Act only provides for expropriation for public purposes and the Constitution provides for expropriation in the public interest as well as for a public purpose. For these reasons it is crucial to establish a new legislative framework. In an attempt to rectify the above difficulties, an expropriation policy and a draft Bill were introduced. The primary purpose of the Bill is to harmonise the considerable amount of legislation in South Africa on the subject of expropriation, and to fill the gaps of the current Act. However, the new proposed Bill was referred back to cabinet as it had various difficulties. According to newspaper commentators, one of these reasons was that market value would not be used when determining the amount of compensation. This is not true, as market value is one of the listed factors in section 25(3) of the Constitution, and it is provided for in the Bill. Another reason was that the role of the courts will also be restricted in the new Bill. Parties will no longer be able to refer disputes concerning the amount of compensation to court. Once again this is not true, the courts role is only restricted in the sense that it would no be able to determine the amount of compensation as provided for in the Constitution, but will only be allowed to approve or decline the amount the Minister determined. This is one of the aspects that may be debatable constitutionally. After an in-depth study of the proposed Bill, the author came to the conclusion that there are actually only three aspects that might be unconstitutional namely; the definition of public interest which is to be included that widens the capacity to expropriate; departure from the notice procedure; and the fact that the courts may no longer determine the amount of compensation, but only approve or decline. Expropriation is one of the most important tools to speed up land reform in South Africa, and it is, therefore, of the utmost importance that the procedure must take place in a fair, equitable and constitutional manner. The purpose of this study will be to identify the aspects which result in expropriations that is not done on this basis, to scrutinize them and to make recommendations to these aspects. / Thesis (LL.M. (Law)--North-West University, Potchefstroom Campus, 2009.