Macau Journal of Brazilian Studies《澳门巴西研究期刊》2019年第1期要目 | 法宝期刊

ARTICLE BY INVITATION

1.NEW OPPORTUNITIES FOR LITIGATION IN BRAZIL: AN INTERNATIONAL APPROACH TO THE PROVISIONS OF THE BRAZILIAN NEW CODE OF CIVIL PROCEDURE

巴西诉讼领域的新机遇：巴西新民事诉讼法的国际思路

Author: José Augusto Fontoura Costa (Professor at São Paulo University (USP))& Daniel Tavela Luís (Partner at Manuel Luís Advogados Associados. PhD and Master in International Law by University of São Paulo (USP). Professor at Mackenzie Presbyterian University and FGV Sao Paulo Law School.)

Abstract: The Brazilian New Code of Civil Procedure introduced some useful innovations in the section of international jurisdiction. The focus of this article will be on the provision of article 22, III, which gives to the Brazilian judicial authority jurisdiction to hear cases “in which the parties involved, expressly or tacitly, submit themselves to national jurisdiction”. This provision innovates the Brazilian legal order by recognizing the principle of autonomy of the parties as attributive of jurisdiction to Brazilian judges. The main argument we sustain in this article is that the new Code of Civil Procedure allows Brazil to project itself as a leading jurisdiction for lusophone countries in the future. We further argue that the modernization in the Brazilian New Code of Civil Procedure in an effort towards internalization certainly could help Brazil to develop even further as a support jurisdiction for international arbitration.

Key words: Civil Procedural Code; Brazil; lusophone countries; litigation

2.DOUBLE INFLUENCE AND DUAL PROJECTION BETWEEN GLOBAL AND LOCAL: THE "MARIANA CASE" AND THE SOCIAL (IR)RESPONSIBILITY OF MINING COMPANIES

全球与本土间的双重影响与投射:"马里亚纳案"与矿业公司的社会责任

Author: Jânia Maria Lopes Saldanha (Post-Doctor in Law of the IHEJ - Institut des Hautes Études sur la Justice, Paris. Coordinator and professor of the Law Department and the Graduate Program in Law at the Federal University of Santa Maria (UFSM), Rio Grande do Sul, Brazil)& Clara Rossatto Bohrz (Scientific initiation scholar of PIBIC - CNPQ - directed by Jânia Maria Lopes Saldanha. Graduated from the UFSM Law School. Member of the research group Center for Comparative Legal Sciences, Universalization of Law and Systems of Justice (CCULTIS))

Abstract: The article aims to analyze the double influence of the global on the local in face of the close and ambiguous relations between economy and the law, as well as to demonstrate the double projection of the place of the global, either from the perspective of the (ir)responsibility of the transnational companies involved in the Mariana case, or from the mapping of human rights violations of Vale SA around the world. The dialectic method of approach and the bibliographic and documentary method of procedure were used, with emphasis on reports and documents from research groups and civil society organizations. Among the conclusions, it was verified that the political-economic interests contributed to the State's bad performance before and after the tragedy - from the elaboration of the New Mining Code to the agreement signed extrajudicially between the companies and the government for the indemnification and support of the victims. However, the Brazilian tragedy only reflects the height of Vale's social irresponsibility in relation to other focuses of resistance in the world, notably Chile, Mozambique and Canada. Finally, private mechanisms for the protection of human rights - such as codes of conduct - are fragile, the national mechanisms are insufficient, and the need for transnational corporations to be subject of international public law is urgent.

Key words: Corporate Social Responsibility - Mariana - Mining

3.VIRTUAL UNDERCOVER AGENT

虚拟“卧底侦查”

Author: Jaqueline Ana Buffon (Federal Prosecutor, Member of the Support Group on Cybernetic Criminality of Brazil's Federal Prosecution Service. Coordinator of the Darknet Operation at the Federal Prosecution Service)

Abstract: Cybercrime has created the need of adapting the legal system, since a progressive innovation in procedures concerning proper investigation tools and mechanisms is necessary to face the new means of committing criminal offenses and the new criminal behaviors that have appeared in the cybernetic environment. The Virtual Undercover Agent is one of those key investigation procedures to identify and investigate cybercrimes. The actions of the undercover police agent will be authorized and delimited by a court order. It is important to highlight the difference between cyberpatrols’ actions in open networks, and the actions of the undercover agent itself in restricted networks, since the latter needs to have a Court permission that will remove the guilt in illicit acts committed, within the limits defined.

Key words: Virtual undercover agent. Cybercrime. Digital evidence. Cyberspace. Undercover agent. Criminal investigation in cyberspace. Agent provocateur. Sting operation. Intelligence gathering in open sources. Controlled action

4.HYBRID WAR IN BRAZIL: THE LULA CASE

巴西混合战争：“卢拉案”

Author: Marina Gusmão de Mendonça (Majored in History and Law at the University of São Paulo (USP); MS and Ph. D. in Economic History at the College of Philosophy, Linguistics and Human Sciences of the University of São Paulo (FFLCH-USP); Post-Doctorate in Social Sciences at the College of Philosophy and Sciences of University Estadual Paulista (UNESP)- Marília Campus; Associate Professor in the Department of International Relations of Escola Paulista de Política, Economia e Negócios (EPPEN) from the Federal University of São Paulo (UNIFESP)- Osasco Campus; Collaborating Professor in the Social Sciences Post-Graduation Program of the University Estadual Paulista (UNESP)- Marília Campus)

Abstract: Since independence in 1822, Brazilian history has been a succession of coups or coup attempts. On all these occasions, what was at stake was the attempt, on the part of the ruling classes and middle-class sectors, of establishing legal-political control over the State and preventing access by the working class to greater participation in national income and to the benefits of economic development, as well as delivering the country's wealth to foreign capital. In this context, the hybrid warfare against the country is conducted in defense of the interests of major international companies, such as the main oil companies, anxious to appropriate the Brazilian oil wealth. And one of the main instruments of this hybrid warfare is the so-called lawfare, that is, the use of legislation and the judicial system to persecute and destroy political opponents. This tactic was evident against President Luiz Inacio Lula da Silva, sentenced to 12 years and 1 month in prison and imprisoned on April 7, 2018. The objective was obvious: to prevent him from running for the presidential elections of 2018 and destroy the PT and all the left.

Key words: Brazil; hybrid war; lawfare; President Lula

5.CONSTITUTIONAL HEALING THEORY

宪法矫正论

Author: Emerson Ademir Borges de Oliveira (Master and PhD in State Law from the University of São Paulo. Post-Doctor by the University of Coimbra. Assistant Professor Doctor in the courses of Graduation, Specialization, Master and PhD in Law at the University of Marília. Lawyer)& Silvana Colombo de Almeida (Post-Graduated in Constitutional Law by the Damásio de Jesus Law College. Master in Philosophy from the State University of São Paulo. Lawyer)

Abstract: Can the Constitution be healed? The aim of this article is the answer on how to deal with offenses committed in the face of the Constitution which are built on consolidated factual situations. Often the simple declaration of unconstitutionality, either from the beginning, the theory of nullity, or for the future, in annulability theory, or in conjunction both with the temporal modulation effects will not show positive responses to the constitutional offense. On the other hand, the recognition of unconstitutionality, although for the future, could lead to more harmful economic, political, social and legal effects than maintaining the offensive act. Sometimes the theory of constitutionalising supervening can respond appropriately, with the change of the constitutional paradigm. But what to do when the Constitution is even changed? The methodology for the development work is eminently literature and case law.

Key words：Constitutional healing; annulability theory; temporal modulation effects; facts normative power

6.FOUNDATIONS AND EVOLUTION OF THE RIGHTS OF OLDER PERSONS IN BRAZIL: A BRIEF PANORAMA

巴西老年人权利基础和演进概述

Author: Bibiana Graeff (Professor at the University of São Paulo, School of Arts, Sciences and Humanities - EACH)

Abstract: This article presents a brief critical assessment of the evolution of the older persons’ rights in Brazil, addressing not only some of the legislative advances that have resulted in the implementation of specific public policies for this populational group, but also the uncertainties about the future of the rights won and the expansion of policies in a context of accelerated population aging in the country.

Key words: older persons’ rights; human rights; Brazil

7.THE NECESSARY DISTINCTION IN TREATMENT OF PUBLIC AND PRIVATE CORRUPTION BASED ON THE ECONOMICAL IMPACT TO THE SOCIETY - AN INTERNATIONAL CONSTITUTIONAL PERSPECTIVE

从宪法的国际视角看社会经济影响下公私腐败区分处理的必要

Author:Mário Baracho Thibau (Master of Law’s (LL. M) degree scholar by Faculdade de Direito Milton Campos, Belo Horizonte, Brazil); Paulo Marajá Mares Guimarães (Master of Law’s (LL. M) degree scholar by Faculdade de Direito Milton Campos, Belo Horizonte, Brazil)& Arthur Magno e Silva Guerra (Doctor’s degree in Public Law by Pontifícia Universidade Católica de Minas Gerais. Master of Law’s (LL. M) degree by Universidade Federal de Minas Gerais. Post-Graduate’s degree in Municipal Public Law)

Abstract: This paper presents prospects for the necessity of dual treatment of corruption between the private and the public sphere. The review of the academic research so far concludes that there is efficiency in fighting the corruption in the private sphere by applying the compliance doctrine, therefore the corruption in the public sphere is more dangerous for the economic development of a country. The review of the corruption phenomenon is done from a Brazilian perspective, by showing that only recently such issue is being solved within the country and the economic impacts it withstands.

Brazil is a country ravaged by corruption probes, as they unraveled in the light of the global legal community something good come out of it. The legal system of Brazil, from the early 2008, has been rapidly evolving and searching for new ground-breaking anti-corruption laws that may be applied by its pairs in the emerging markets legal systems. The misuses of power in the public sphere in Brazil generate more widespread economic damages, being more offensive to the Rule of Law principle, then the private corruption sphere even though the equivalence of the concept of corruption in the dual perspectives. Therefore, there is relevance in the public/private divide in anti-corruption law.

Key words: distinctive treatment of public and private corruption; dual perspectives of corruption treatment; economic impact of corruption in societies; corruption and democracy; corruption and economic growth; Brazilian anti-corruption instruments

Macau Journal of Brazilian Studies《澳门巴西研究期刊》（以下简称本刊，英文缩写为MJBS）由澳门巴西研究学会出版（葡文缩写为AEBM）。澳门巴西研究学会是致力于为促进和发展中国–巴西关系提供理论支持和建设性倡议的高端智库。作为研究性学术刊物，《澳门巴西研究期刊》旨在提供一个具有深度、广度关于巴西研究的国际性平台。除了学术对话之外，本刊也尤其欢迎写作的内容和风格以飨广大读者以及中国-巴西经贸关系的政策制定者的稿件。

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