Meritum, Law Journal of FUMEC University

FAMILY RIGHTS

Keren da Silva Alcântara, Ludmila Aredes Brandão, Adriano da Silva Ribeiro — Tue, 01 Jul 2025 00:00:00 +0000

The study examines the jurisprudence of the Santa Catarina Court of Justice regarding the coexistence of stable union with civil marriage. The research focuses on the Appeal Case No. 0310137-76.2015.8.24.0008, in which the court recognized a post-mortem stable union, granting pension rights to the woman who claimed a forty-year relationship with a married man. The analysis involved a methodological approach based on bibliographical and exploratory research, as well as examination of legal texts and jurisprudence of the TJSC. The application of legal requirements for recognizing stable union, such as cohabitation and public, continuous, and lasting coexistence, was highlighted. Furthermore, the relevance of affection, the principle of objective good faith, and the evolution of family relationships in judicial interpretation and decision-making were emphasized. The research concluded on the need to recognize new family forms and ensure their rights, even in challenging situations.

Editorial

Adriano da Silva Ribeiro, Sérgio Henriques Zandona Freitas — Tue, 01 Jul 2025 00:00:00 +0000

EDITORIAL

The Postgraduate Program in Law (PPGD) of FUMEC University (master's degree) presents the Meritum Journal, a traditional and reference journal in Law (Qualis-Capes A3), to the academic community, with the mission of being an effective instrument for the dissemination of scientific works developed in Brazil and abroad, in line with the research lines "Private Autonomy, Regulation and Strategy" and "Public Sphere, Legitimacy, Control".

The ascending profile and quality of the Master's Program in Law of FUMEC University were attested by the evaluation carried out by the Coordination for the Improvement of Higher Education Personnel - CAPES, in which it received a score of 4 (four).

The Meritum Journal is characterized by disseminating the knowledge generated by legal investigations that contribute to the training of professionals with critical legal awareness, qualified not only to exercise legal technique, but also to think about Law in its scientific, philosophical, historical, sociological and political aspects.

In a critical, autonomous and plural manner, this issue addresses various themes and problems in the legal universe related to the Democratic Rule of Law and the enforcement of rights. The aim is to analyze and debate perspectives that help to critically interpret our contemporary world and the challenges that arise from it.

Regarding issue 1 of 2024, the articles submitted to Meritum Journal, volume 19, were evaluated by the Editorial Coordination, which examined their suitability to the journal's editorial line, basic and advanced formal and methodological aspects, among others. Each text was then sent to at least two reviewers, using the double-blind peer review system, for analysis of form and content, as well as for the issuance of an opinion.

On this occasion, the Editors pay tribute and thank all who contributed to this praiseworthy initiative of FUMEC University and, in particular, all the authors who participated in this publication, highlighting the commitment and seriousness demonstrated in the research carried out and in the preparation of excellent texts.

Enjoy reading, everyone!

Prof. Dr. Sergio Henriques Zandona Freitas
Prof. Dr. Adriano da Silva Ribeiro
Editorial Coordination

Private Autonomy and the Protection of Human Rights

Lailson Braga Baeta Neves — Tue, 01 Jul 2025 00:00:00 +0000

reality of the state, leading the direction of the economy and violating human rights, without being properly identified. As an example of this premise, there are the tragedies that devastated Mariana and Brumadinho. These sad events demonstrated how harmful actions of some companies, protected by confusing legislation, escape their responsibilities and cause irreparable damage. In view of this, this article analyzes the scope of private autonomy in the face of the impunity of these companies that judge themselves above the laws. It is understood that the responsibility for the risks generated lies exclusively with the State, due to the lack of supervision or intervention in these companies. Furthermore, it is understood that there is a need to establish a hermeneutical dialogue between national and international courts, based on the International Human Rights System, to correct such misinterpretation of private autonomy. Finally, it is concluded that private autonomy cannot be denied, but rather must be limited. This is because, as demonstrated throughout the work, the myth of private autonomy reinforces the lack of responsibility of companies, of all dimensions and nationalities, for their actions that violate human rights. In addition, there is a need for a hermeneutics that has as its starting point the locules of the oppressed and not the oppressor.

The The relationship between capitalism, urbanization, postmodernity and the notion of good living in the New Latin American Constitutionalism

Hugo José de Oliveira Agrassar, Daniella Maria Dias — Tue, 01 Jul 2025 00:00:00 +0000

From the 1980s onwards, the emergence of neoliberalism brought with it an increase in social and economic inequality. In response, the beginning of the 21st century was marked by the emergence of a movement called New Latin American Constitutionalism (NCLA), led by the constitutions of Ecuador in 2008 and Bolivia in 2009, based on respect for the heterogeneity of traditional peoples and on the notion of well-being, with the aim of reducing social and economic inequalities in Latin America. This article aims to analyze the relationship between capitalism, postmodernity and urbanization from the NCLA notion of well-being to the search to reduce socio-spatial segregation and inequality in cities. The method used is deductive, and the research is based on a bibliographical and documental review. It is concluded that the NCLA constitutional innovations in the urban area, based on the notion of well-being, allow the search for the reduction of socioeconomic inequality in cities, improving the quality of life of subaltern populations.

TERMO DE AJUSTAMENTO DE GESTÃO E O CONTROLE EXTERNO CONSENSUAL REALIZADO PELAS CORTES DE CONTAS

Jefferson Aparecido Dias, Carlos Alexandre Lima de Souza, Heloisa Helou Doca — Tue, 01 Jul 2025 00:00:00 +0000

O estudo analisa o Termo de Ajustamento de Gestão (TAG), instrumento consensual, fruto da evolução da Administração Pública. O termo surge como ferramenta de uma democracia participativa, consensual, e está sendo difundido e utilizado pelas Cortes de Contas. Os objetivos do trabalho são expor a natureza jurídica do TAG no âmbito da administração pública contemporânea, que preza pela consensualidade, bem como a sua conformidade com o controle externo a cargo das Cortes de Contas. Assim, será estudado o Termo de Ajustamento de Gestão como ferramenta auxiliadora no controle financeiro dos entes públicos, servindo como instrumento voluntário de controle financeiro destinado à eficiência da gestão pública, de forma consensual. É fruto de uma releitura das funções institucionais dos Tribunais de Contas no Brasil, que os inserem num modelo controlador mais ativo, com funções destinada a promover a efetividade dos direitos fundamentais e consequentemente a dignidade humana do cidadão. No primeiro tópico será verificada a evolução dos modelos de Administração Pública, até chegar ao modelo consensual. Seguidamente será estudado o surgimento dos Tribunais de Contas no Brasil, desde o período imperial, suas funções originárias e o atual entendimento do papel das Cortes de Contas. Por conseguinte, serão analisados o Termo de Ajustamento de Gestão - TAG, seu surgimento, fundamentação jurídica funcionalidade, requisitos para a realização. Para a produção do presente estudo foi utilizado o método dedutivo, com análise de farto material bibliográfico, revistas especializadas e análise da jurisprudência nacional.

CIVIL LIABILITY IN TRAFFIC ACCIDENTS INVOLVING AUTONOMOUS VEHICLES

Fabiane Margareth Giordani, Fernanda Corrêa Pavesi Lara — Tue, 01 Jul 2025 00:00:00 +0000

New technologies are increasingly present in the daily life of the human being and, in this universe motor vehicles acquire more and more autonomy. However, smart technology could cause harm to users or third parties. Liability is a legal instrument able to guarantee victims will be compensated of tort. This study aims to analyse the elements of civil liability in an hipotetic situation, according Civil Law article 927, base on risk theory; and Consumer Law article12, based on product defect. The research elaboration used the deductive method and its main source were civil law authors and scientific articles published in artificial intelligence and civil law specializes sites. The research corroborates the thesis that there are gaps in the traditional normative to deal with emerging problems of the use of autonomous systems due to the more intensive application of artificial intelligence.

SMART CONTRACTS AND THE SOCIAL FUNCTION OF CONTRACTS

Alejandro Knaesel Arrabal, Jorge Stoeberl, Luiza Santi Anunziato — Tue, 01 Jul 2025 00:00:00 +0000

The digital age has brought Smart Contracts into the environment for the use of mandatory rights, generally as an instrument of easy efficiency and a high degree of efficiency. Product of bibliographical research and discursive analysis, the article evaluates the (in)adequacy of the contractual instrument ahead of the principle of the social function of the contract. The study points to the incompatibility between Smart Contracts and the principle, given that it is an instrumental technical dimension that, in its characterization, reproduces the ideals of the legal relations of the Civil Code of 1916, extremely individualistic, a dissonant aspect compared to the Civil Code of 1916. Civil of 1916, extremely individualistic, dissonant aspect compared to the Civil Code of 1916 Civil of 2002 with the Federal Constitution of 1988, which are introduced in the alternatives a perspective and perspective for the collective and the concern for the common well-being.

DIPLOMACIA ECONÔMICA E O AGRONEGÓCIO

Fabiane Velasquez Marafiga — Tue, 01 Jul 2025 00:00:00 +0000

This article investigates the role of agribusiness actors within the context of economic diplomacy, by questioning, as a research problem, how these actors influence and are influenced by the dynamics of global economic diplomacy. The research posits, as a hypothesis, that both state and non-state actors play crucial roles in defining and implementing economic diplomacy, directly affecting international agribusiness trade. The overarching goal of the manuscript is to unravel the complexity of the relationships between economic diplomacy and agribusiness, focusing on the analysis of economic diplomacy theoretical models, identifying the key stakeholders involved, and exploring their strategies and influences. The theoretical framework encompasses theories of economic diplomacy and studies on agribusiness, notably from the perspectives of Robert Putnam and Helen Milner, utilizing an interdisciplinary methodology that combines theoretical analysis and empirical investigation of secondary sources.

A MEDIAÇÃO TRABALHISTA NA SOCIEDADE MODERNA

Rosane Teresinha Carvalho Porto, Natália Ues Cury — Tue, 01 Jul 2025 00:00:00 +0000

The present study aimed to analyze the need to change paradigms in terms of access to justice, which can be achieved in other ways, mainly through complementary forms of conflict resolution, especially mediation, due to the way in which the conflict and its consequences. ramifications are treated. For this, fraternity and empathy are mentioned as transforming elements of human relationships. Because of this, the question is: what is the way to transform Brazilian culture from a violent and adversarial approach to conflict for the development and realization of a culture of social peace? What is the relevance of fraternity and empathy in resolving disputes in a non-adversarial way? This is a bibliographic research using the hypothetical deductive approach method. After conducting the research, it was possible to reach the understanding that a structural change of paradigms and mentality is necessary - from the adversarial to the dialogue. Furthermore, it is argued that it is possible to transform the Brazilian culture of violent and adversarial approach to conflict into a culture of social peace, especially with the use of mediation and its techniques, and with fraternity and empathy as great allies.

EXTRAPROCEDURAL MECHANISMS FOR RESOLVING COLLECTIVE CONFLICTS AND THE NEGOTIATIONS CARRIED OUT IN THE SAMARCO CASE

Tue, 01 Jul 2025 00:00:00 +0000

This study aims to analyze the historical context of collective judicial protectioin in Brazil, reaching access to justice, proposed by Mauro Cappelletti. Facing the barriers imposed by the Judiciary, the extra-procedural mechanisms of confrontation has been gaining strength, including the solution regarding collective protections. Finally, it analyzes how the extra-procedural negotiation happend in the Samarco Case in Mariana-MG. This study used the hypothetical-deductive method and is developed by bibliographic and documental research.

TAXATION AND THE CONSTITUTIONAL (UN)FULFILLMENT OF AN EFFECTIVE BATTLE AGAINST HUNGER IN BRAZIL

Mario Di Stefano Filho, Marciano Buffon — Tue, 01 Jul 2025 00:00:00 +0000

ABSTRACT: The general objective of this article is to conduct a systematic literature review, covering the time frame from 2013 to the present, on the role of taxation in the recent worsening of poverty caused by food shortages in Brazil. As specific objectives, it seeks to answer the following questions: 1) What is the amount necessary for a citizen to have the minimum food allowance in Brazil? 2) Would the minimum wage or public welfare policies such as emergency aid or Bolsa Família be sufficient? 3) Is the exemption from the minimum food allowance respected in Brazil? To this end, the hypothetical-deductive method was used, together with bibliographic research of qualified articles and books relevant to the topic, in addition to data from official institutions. It was therefore concluded that tax collection is partially responsible for food insecurity, since it continues to tax the consumption of basic food products and makes their access more difficult for the most vulnerable groups. However, the system itself has tools to change this scenario, through tax exemptions on basic food items and increased taxation on income and assets, reaching those who truly have the capacity to contribute. However, only the first will be done by the 2023 tax reform.

MANDATOS COLETIVOS COMO ESTRATÉGIA DE APERFEIÇOAMENTO DA REPRESENTATIVIDADE E CIDADANIA

Natal dos Reis Carvalho Junior — Tue, 01 Jul 2025 00:00:00 +0000

O presente artigo debate os mandatos coletivos, uma prática que surge espontaneamente no Brasil e de modo paralelo a legislação eleitoral. Pelos mandos coletivos um titular é eleito para efetivamente ocupar o cargo, mas assume já durante a campanha eleitoral o compromisso de compartilhar as decisões com um grupo de pessoas denominados coparlamentares. Em que pese os problemas, especialmente pela ausência de regulamentação do instituto, esse modelo se mostra capaz de ampliar a representatividade do mandado eleitoral parlamentar, dando-lhe maior vigor e abertura para a comunidade. Assim, o artigo elabora conceitos e elementos do mandato coletivo e apresenta suas condições para melhoria da qualidade representativa do mandato parlamentar e, consequentemente, sua utilização como forma de aperfeiçoamento da cidadania pela democracia. Este artigo é desenvolvido por meio de pesquisa bibliográfica e confronto com as balizas de democracia da Constituição Federal e o instituto informal dos mandatos coletivos.

The ADMINISTRATIVE AND JUDICIAL RECOGNITION OF DISABILITY AND THE SYSTEMIC UNDERSTANDING OF THE LEGAL SYSTEM

Rodrigo Zacharias, Luiz Alberto David Araujo — Tue, 01 Jul 2025 00:00:00 +0000

Background: The expert act of diagnosing a disability, in judicial and administrative processes, is a complex issue that has not been well addressed by the Public Authorities, making it difficult for Persons with Disabilities to access their rights. Objective: It is to assess whether or not, in the aforementioned processes, the standards contained in the New York Convention, the Federal Constitution and Law 13,146/2015 on the biopsychosocial assessment of Persons with Disabilities are respected, proposing – if the answer is negative – possible solutions to face the problem. Method: Use of deductive and inductive methods, through bibliographic, legislative and jurisprudential research. Results: The text defends that disability cannot be assessed through expertise based only on biomedical criteria, otherwise the act will be null and void. Only through a biopsychosocial assessment, carried out by a multidisciplinary and interdisciplinary team, with analysis of the person's potential, is it legally possible to assess the presence or absence of a disability in a person. And, according to the systemic view of the legal system, not even a law could establish specific cases of disability, and in all cases a biopsychosocial assessment must be carried out. Contributions: Diagnosing the deficit in the provision of this service essential to the access of the rights of people with disabilities, the article seeks to contribute to the proper understanding of the legal issues involved, recommending that the Public Administration and the Judiciary be adequately structured to carry out appropriate biopsychosocial assessments recognition of disability.

DO DIREITO INTEGRACIONAL AO DIREITO COMUNITÁRIO

Jamile Gonçalves Calissi — Tue, 01 Jul 2025 00:00:00 +0000

It is the present research to develop an analysis of the regional integration process in order to understand it in the light of its importance in the economic-international scope to, by serving as a justification, emphasize the so-called Community Law and its contemporary constitutional implications. In this sense, the research will analyze the aspects that involve the evolution of the integrational condition to the communitarian condition occurred, mainly, in Europe. The present study is justified because, from it, it will be possible to understand the contemporary constitutional scenario in its point of contact with international issues. Analytical-inductive methods will be adopted as scientific methodology, from which, through analysis of the corresponding legislation, as well as doctrine and jurisprudence, the factual and social context of the proposed discussion will be analyzed. Added to this use of true legal syllogism, the theoretical framework, indispensable for a better understanding and fitting of the foundations to the context of praxis.

O PROCESSO ESTRUTURAL COMO INSTRUMENTO DE REPRESSÃO AOS PEQUENOS DANOS AOS CONSUMIDORES

João Paulo Baeta Damasceno, Dennis Verbicaro, Gisele Santos Fernandes Goés — Tue, 01 Jul 2025 00:00:00 +0000

This article aims to establish a useful and necessary dialogue between consumer law and the structural process, as a way of making concrete the values established in Brazil’s Constitution that deal with consumer protection, notably in relation to minor damages. Thus, it seeks to make a diagnosis of the current scenario of the Judiciary that indicates the inefficiency of repressive tutelage, both by means of statistical indicators, and by barriers created by jurisprudence and endorsed by the doctrine. In a theoretical tour, it intends to demonstrate the viability of the structural process as an alternative to inhibitory protection, so that consumers, together with suppliers, associations, the Public Prosecutor's Office and the Public Defender's Office, can dialogue in a broad democratic arena with the objective of building a solution that can be effectively fulfilled. And, to accommodate and make compatible the diplomas for the defense of consumption and civil procedure in the search for the viability of the structural process, this work will use the theory of the dialogue of sources. The present work will use the hypothetical-deductive method, using theoretical and bibliographic research as a technique.

DIREITO TRIBUTÁRIO DAS FAMÍLIAS

Anderson Henrique Vieira, Ana Paula Basso, Talden Queiroz Farias — Tue, 01 Jul 2025 00:00:00 +0000

Families cannot be understood exclusively in the biological context, and it is necessary to consider other criteria for the establishment of the parental bond, such as socio-affectivity, which sometimes condition this grouping to legal-tax informality. This plurality of relationships poses challenges to the law, which needs to discuss how to implement guarantees to the members of this institution so that the State complies with its obligation to confer special protection, as provided in the CF/88. Thus, the question is: is there an intangible family nucleus that limits the State's power to tax? How to include in this discussion all the possible family configurations under an inclusive and indeterminist point of view? To this end, the article aims to debate the interrelations between tax law and family law, highlighting the (un)need for the recognition of an existential minimum of the family nucleus that as such cannot/should not be taxed by the tax authorities. The methodology used is a bibliographic review, through the deductive method, having Adamy (2022) as the main theoretical framework. The main conclusion indicates that there is an impacting field of intersection between these two areas of law (family tax law) that needs to be developed under a transdisciplinary and plural perspective in order to avoid invisibilizing a considerable part of these institutions.

THE UNCONSTITUTIONALITY OF THE IMPOSITION OF THE REGIME OF MANDATORY SEPARATION OF PROPERTY ON ELDERLY PEOPLE AGED 70 OR OVER

Aline Andrighetto, Lavínia Luz Ramos — Tue, 01 Jul 2025 00:00:00 +0000

The present work seeks to verify the legal provision (art. 1,641, II, CC), which imposes the mandatory separation property regime on the elderly person's marriage. We sought to analyze the constitutional principles and guarantees that may be being violated as the freedom and equality of the group is restricted. The research also intends to examine specific cases in which the unconstitutionality of the device is being questioned. The old text of the legislation was also compared to the current one, both analyzed from the perspective of active and healthy aging.

Expediente - Sumário

Editor Revista — Tue, 01 Jul 2025 00:00:00 +0000