Published Articles

Summary

SOME NOTES ON THE CHANGES TO THE MISREPRESENTATION LAW AND THE TOPIC 1199 DECIDED BY THE STF

Author: Dr. Cláudio Cairo, et al, 2022.

WHAT AUTONOMY FOR THE STATE ATTORNEY GENERAL'S OFFICES?

Author: Dr. Cláudio Cairo, 2013.

THE ADMINISTRATIVE CONTRACT AS A CURRENT PHENOMENON OF ECONOMIC LAW.

Author: Dr. Cláudio Cairo, 2007.

THE PRINCIPLE OF CONSENSUALITY IN THE DEMOCRATIC STATE OF LAW?

Author: Dr. Cláudio Cairo, 2003.

THE ADMINISTRATIVE CONTRACT AS A CURRENT PHENOMENON IN ECONOMIC LAW

Author: Dr. Cláudio Cairo, 2001.

CRIMINAL AND TAX LIABILITY FOR TAX FRAUD

Author: Dr. Cláudio Cairo, 2000.

HETERONOMOUS EXEMPTION BY INTERNATIONAL TREATY - A SYSTEMATIC INTERPRETATION

Author: Dr. Cláudio Cairo, 1999.

THE NEW BRAZILIAN CIVIL CODE

Author:Dr. Cláudio Cairo, 1998.

WHAT IS THE JUDICIARY OF THE 21ST CENTURY?

Author: Dr. Cláudio Cairo, 2012.

COMPLIANCE PROGRAMS AND THE ROLE OF STATE ADVOCACY

Author: Dr. Cláudio Cairo, 2018.

THE SUPPLEMENTARY COMPETENCE TO LEGISLATE ON PERSONAL SUMMONS OF THE STATE ATTORNEY

Author: Dr. Cláudio Cairo, 2009.

THE NOTION OF PUBLIC SERVICE FROM THE CONSTITUTIONAL ECONOMIC ORDER

Author: Dr. Cláudio Cairo, 2004.

Dejudicialization, Administrative Protection and Negotiation

Author: Dr. Cláudio Cairo, et al.

ARBITRATION IN PUBLIC ADMINISTRATION AND THE STANDARDIZATION OF ARBITRATION CLAUSES IN ADMINISTRATIVE CONTRACTS

Author: Dr. Cláudio Cairo.

COMMENTS ON ARTICLE 22 OF THE CURRENT TAX ENFORCEMENT LAW

Author: Dr. Cláudio Cairo.

This study analyzes some aspects of the changes in Federal Law No. 8,429/1992 (Administrative Misconduct Law - LIA) and Topic 1,199 judged by the STF, considering that it is surrounded by a series of interpretative complexities and controversies in its application. The change in Federal Law No. 13,964/2019 was highlighted, meaning that misconduct actions allow the execution of a civil non-prosecution agreement, as well as some changes introduced by Federal Law No. 14,230/2021, especially the extinction of the negligent form of misconduct. Next, there are some notes on Theme 1,199 in the STF (ARE No. 843,989/PR) regarding the effects of the revocation of the negligent modality of the act of administrative improbity by Federal Law No. 110 14,230/2021, as well as the effects of the new prescriptive regime and the consequences from a jurisprudential point of view, to fill the gaps and inconsistencies in the legislative work or even the idiosyncrasies of the legislative changes introduced, with the aim of not allowing the principle of legal certainty, of a constitutional nature, to be undermined.

SOME NOTES ON THE CHANGES TO THE MISREPRESENTATION LAW AND THE TOPIC 1199 DECIDED BY THE STF

SUMMARY: 1. Introduction; 2. Changes in the Improbity Law; 3. Topic 1,199 judged by the STF; 4. The consequences of the recent STF judgment; 5. Conclusions — References.

Author: Dr. Cláudio Cairo, et al, 2022.

1. Initial Considerations

The recent debates (and historical clashes) on the career of State Attorney in the National Congress, as well as the challenges that arise and constantly overlap, at a national and regional level, regarding the defense of prerogatives and (re)construction of the career's identity, have sparked interest in reflecting on the autonomy of the PGEs.

A legal study, also from the point of view of the interests of the career of State Attorney, is a necessary measure to avoid preconceived positions on the issue of autonomy. The aim is to address the matter without the prior conclusion that institutional autonomy is a “lifeline”, although it constitutes a relevant item of demand by ANAPE and other entities.

What autonomy for the State Attorney General's Offices?

SUMMARY: 1. Initial Considerations; 2. The Legal Conception of the Democratic State of Law; 3. Current Constitutional Normative Treatment of Public Advocacy; 4. The Legal Nature of State Attorney General's Offices; 5. The Legal Category of “Autonomy”; 6. Criteria for Defining the Content of Autonomy in the Exercise of the Administrative Function; 7. Classifications of Autonomy; 8. Autonomy due to the exercise of the administrative function; 9. The Autonomy of the Public Prosecutor's Office and the Public Defender's Office; 10. Institutional Autonomy Provided for in PEC 452/2009; 11. What is the Autonomy for State Attorney General's Offices (?); 12. Conclusion.

Author: Dr. Cláudio Cairo, 2013.

1. INTRODUCTION – THE PATHS TO BE FOLLOWED

The fundamental points addressed in this work consist of the analysis of the institution of the Administrative Contract in view of the new form that the State has been assuming in the last quarter of the 20th century.

It should be noted that the study presented here works with two main aspects: the first concerns the administrative contracts entered into by the Public Administration, at the various levels of government, with private individuals; the second consists of constructing, from a theoretical basis, from a legal aspect, the conception of State that emerges from the 1988 Constitution and its subsequent amendments.

THE ADMINISTRATIVE CONTRACT IN THE FACE OF THE CURRENT CONCEPT OF STATE.

SUMMARY: 1. Introduction – The Paths to Follow; 2. The Current Legal Conception of the State; 3. The Concept of Public Service; 4. State Action in the Public Domain; 5. State Action in the Economic Domain; 6. The Administrative Contract; 7. Administrative Contracts and the Current Conception of the State; 8. Conclusion; 9. Bibliographical References.

Author: Dr. Cláudio Cairo, 2007.

1. Introduction

The transition from the Totalitarian State of the Middle Ages to the Democratic State of Law of the 20th century led to the implementation of a model that welcomes, demands and encourages the growing participation of individuals, communities and civil organizations in engaging with public issues, creating greater space for popular intervention in political decisions.

At a certain historical moment, in addition to formalizing access to the exercise of power, it became necessary to establish conditions for its exercise to be considered socially legitimate. Therefore, an attempt was made to establish a procedure that would effectively reflect a collective will within society. In this way, the exercise of power would be supported by the collective will, i.e., supported by the legitimacy of the political-legal system.

The Principle of Consensuality in the Democratic State of Law?

SUMMARY: 1. Introduction; 2. Consensus and its meaning; 3. Democracy and Legitimacy; 4. The emergence of Consensuality; 5. On legal principles; 6. The Principle of Consensuality – affirmation of its existence; 7. Bibliographical References.

Author: Dr. Cláudio Cairo, 2003.

1. Introduction

There is a growing movement in the Public Administration towards the stipulation of contracts with private individuals. This movement is geared towards meeting their material needs, as well as delegating the provision of some public services to the private sector, i.e., in terms of the provision of public services, execution of public works or supply of materials or utilities, in view of the improvement of the Democratic State of Law and the expansion of the limitations of public resources to meet the increasingly extensive public and collective needs.

The Administrative Contract as a current phenomenon in Economic Law

SUMMARY: 1. Introduction; 2. The Democratic State of Law; 3. Limitations of the State in maintaining public and collective needs; 4. Executive and Regulatory Agencies; 5. Trend towards Contractualization; 6. The Administrative Contract as a current phenomenon of Economic Law; 7. Conclusion; 8. Bibliographical References.

Author: Dr. Cláudio Cairo, 2001.

1. Introduction

This paper aims to clarify and understand the mechanisms for identifying the taxable person in the face of verification of the practice of tax fraud, which also gives rise to criminal-tax liability. By examining the doctrinal contours of the fraud institute, the existence, at the normative level, of the so-called tax fraud will be observed, making jurisdiction act in its various aspects, e.g., civil and criminal. In effect, it also attempts to demonstrate the intercommunication verified in the repository of the legal system, enhanced by the notion of systemic unity and cohesion, between the sanctioning contents contained in the rules of criminal law and tax law, when imputing criminal liability for tax offenses, transplanting their content to the field of tax liability. This intercommunication also arises with the improvement of legal disciplines, especially Economic Criminal Law, the theme that surrounds this study. It is important to point out that the study presented here should not be seen as a simple increase in the use of criminal law as a symbolic element of coercion of conduct, it goes beyond this narrow limit, to achieve the effectiveness of the tax rule with regard to patrimonial liability for the payment of taxes.

CRIMINAL AND TAX LIABILITY FOR TAX FRAUD

SUMMARY: 1. Introduction; 2. Criminal-tax liability; 3. Tax liability; 3.1. Third parties liable; 3.2. The legal framework for tax purposes; 3.3. Violations of the law, contract and statute in the context of tax liability; 4. Fraud and its verification in the tax sphere; 5. Enforcement of the criminal conviction sentence; 6. Conclusion; 7. General and Specific Bibliographic References.

Author: Dr. Cláudio Cairo, 2000.

1. Introduction

Based on the subject matter in question, heteronomous exemption from taxes through international treaties signed by the Union, the aim is to undertake a constitutional-tax study, in light of a systematic method of interpretation, involving, primarily, the analysis of the Brazilian Federative System and the System of Distribution of Powers embedded in the current Constitution of the Republic.

Heteronomous exemption is understood as the possibility, granted by the Federal Constitution, of a federative entity being able to establish, per se, i.e., based on its own set of constitutional attributions, the exemption of taxes of another entity of the Federation. The heteronomous exemptions conveyed through international treaties are those established with the respective legislative decree of the National Congress, revolving around taxes under the jurisdiction of the States, the Federal District or the Municipalities.

The (im)possibility of establishing tax exemptions under the jurisdiction of the States, the Federal District and Municipalities through international treaties signed by the Union has given rise to enthusiastic doctrinal discussion within the scope of constitutional-tax hermeneutics.

HETERONOMOUS EXEMPTION BY INTERNATIONAL TREATY - A SYSTEMATIC INTERPRETATION

SUMMARY: 1. Introduction; 2. Divergent doctrinal understandings on the subject; 3. The Supremacy of the International Treaty? 4. The Federative System in the Constitution; 5. The System of Competencies; 6. Systematic approach from the perspective of Constitutional Competencies; 7. Conclusion; 8. Bibliographical References.

Author: Dr. Cláudio Cairo, 1999.

1 INTRODUCTION

The provisions included in legal texts reflect the trends of the time in which they are inserted.

According to the assertion above, the analysis of the mens legis (meaning of the rule) from a historical-systematic point of view brings to light the thinking and trends of an era.

In this way, and based on the assumption that we are agents of the time of which we are a part, our activities gain participatory expression, focusing on promoting the highest and best level of integration with our time. Invested in this participatory attitude, on the occasion of the lecture given by the eminent member of the Supreme Federal Court, Min. José Carlos Moreira Alves, during the week of the celebration of the centennial of the Institute of Lawyers of Bahia, I took the initiative of publishing this brief report on some of the changes brought about by the advent of the new Brazilian Civil Code project.

THE NEW BRAZILIAN CIVIL CODE

SUMMARY: 1. INTRODUCTION; 2. THE CURRENT CIVIL CODE AND ITS REFORMULATION TRENDS; 3. CIVIL CAPACITY; 4. LEGAL ENTITIES UNDER PUBLIC LAW; 5. OBJECTIVE CIVIL LIABILITY OF LEGAL ENTITIES UNDER PUBLIC LAW; 6. PERSONALITY RIGHTS; 7. CIVIL DOMICILE AND PROFESSIONAL DOMICILE; 8. THE MODERN CONCEPT OF LEGAL TRANSACTION; 9. PRESCRIPTION AND DECADENCE; 10. CONCLUSION; BIBLIOGRAPHICAL AND RESEARCH REFERENCES.

Author: Dr. Claudio Cairo, 1998.

“We have forgotten that the Law is a medicine with which we seek to restore the health of social coexistence”. With these words, Calmon de Passos conveys very well the feeling of impotence of men to prevent and resolve existing conflicts through non-state institutions, always having to resort to legal services. The crisis of the State, especially of administrative efficiency in the fiscal, managerial and patrimonial spheres, has made more evident the need to make the institutional role of the Judiciary effective, thus contributing to the backwardness of the Judiciary in this century, promised by the new reforms, new codes and renewal of legal operators.

WHAT IS THE JUDICIARY OF THE 21ST CENTURY?

SUMMARY: 1. INTRODUCTION; 2. THE CURRENT CIVIL CODE AND ITS REFORMULATION TRENDS; 3. CIVIL CAPACITY; 4. LEGAL ENTITIES UNDER PUBLIC LAW; 5. OBJECTIVE CIVIL LIABILITY OF LEGAL ENTITIES UNDER PUBLIC LAW; 6. PERSONALITY RIGHTS; 7. CIVIL DOMICILE AND PROFESSIONAL DOMICILE; 8. THE MODERN CONCEPT OF LEGAL TRANSACTION; 9. PRESCRIPTION AND DECADENCE; 10. CONCLUSION; BIBLIOGRAPHICAL AND RESEARCH REFERENCES.

Author: Dr. Claudio Cairo, 2012.

1. INTRODUCTION

Legal reflections on compliance programs and the role of the State attorneys, in the proportion and dimension they hold, have not yet flourished among State Attorneys, given the current situation, originality and complexity in which they are inserted. The current situation comes from the current and growing democratization of access to information about the current and experienced multisectoral fight against corruption by the Brazilian justice system and its institutional, economic, social and cultural consequences. The originality is related to the possibility of enhancing (even greater) the role of the public attorneys in the national scenario of constitutional attorneys' offices (PGEs, MP and Public Defender's Office). The complexity comes from the social, political, institutional and multifunctional contexts that surround the issue of corruption and its consequences.

COMPLIANCE PROGRAMS AND THE ROLE OF STATE ADVOCACY

SUMMARY: 1. Introduction; 2. Maximizing economic results and the need to make them compatible with ethical culture in companies; 3. Corporate governance (private and public) also as a trend; 4. Compliance (or integrity) programs and their historical context; 5. Compliance (or integrity) programs and their effectiveness; 6. Current constitutional normative treatment of State advocacy; 7. The role of State advocacy in the implementation of compliance (or integrity) programs; 7.1. The role of State advocacy in the internal sphere; 7.2. The role of State advocacy in the external sphere; 8. Conclusions.

Author: Dr. Cláudio Cairo, 2018.

1. Introduction.

The issue of the procedural prerogatives of the Public Treasury and its Attorney General's Offices is surrounded by a series of controversies. Sectors of national public opinion and even members of the Brazilian legal community have not yet understood the role of the State and the need for its institutional strengthening in procedural matters.

The legal conception of the State is the historical conformation of the powers, attributions, competencies and limitations imposed by the Constitution and by laws in general on the State, society, groups and individuals.

In Brazil, after various institutional upheavals and since the Federal Constitution of 1988, the idea of ​​implementing a true Democratic State of Law has taken hold, with a focus on promoting human dignity.

THE SUPPLEMENTARY COMPETENCE TO LEGISLATE ON PERSONAL SUMMONS OF THE STATE ATTORNEY

SUMMARY: 1. Introduction; 2. The Federation and the Brazilian Model; 3. The Constitutional System of Federative Powers; 4. Personal Summons of the State Attorney; 5. Legislative Power; 6. Supplementary Exercise of Legislative Power; 7. Conclusion; 8. Consulted and Referenced Bibliography.

Author: Dr. Cláudio Cairo, 2009.

1. Introduction.

“A legal notion is an idea that develops itself through successive contradictions and overcomings and is, therefore, homogeneous to the development of things” (Jean Paul Sartre).

Having in mind an exact notion of public service, in force at the current stage of our legal system, is a task that demands a great deal of hermeneutical effort from the interpreter, given the peculiarities to which that notion has been subjected throughout the successive changes in the panorama of state attributions.

In other times, the School of Public Service was formed in France, which even advocated the replacement of the notion of national sovereignty as a prerequisite of public law.

THE NOTION OF PUBLIC SERVICE FROM THE CONSTITUTIONAL ECONOMIC ORDER

SUMMARY: 1 . Introduction . 2 . The Legal Conception of the State . 3 . Doctrinal Positions on the Notion of Public Service . 4 . Classification Criteria for Public Service . 5 . Considerations on the Doctrinal Positions related to Public Service . 6 . Public Services in the Federal Constitution of 1988 . 7 . Conclusion . 8 . Bibliographic References .

Author: Dr. Cláudio Cairo, 2004.

1. Introduction

The topics of access to justice, procedural effectiveness and appropriate means of resolving conflicts have sparked intense theoretical discussion today, whose thematic scope varies in a multifaceted manner (due to the diversity of existing approaches), complex (due to the set of interests involved) and dynamic (due to the constant institutional, social, political and economic movements evidenced).

In addition, the avalanche of lawsuits has constituted a challenge for judicial policies to promote access to justice and the effectiveness of the provision of legal protection. There are already many practical experiences, regulations, empirical research and theories that seek to find and open ways to face the daily obstacles linked to the improvement of the administration of justice (e.g.: implementation of small claims courts, holding of “national conciliation weeks” under the discipline of CNJ Resolution No. 125/20105, development of case management6 and intensive use of technology). After the enormous number of cases being processed in the Brazilian justice system, as evidenced by the CNJ, there has been, in the recent historical series, a congestion rate of over 70%, with tens of millions of cases being processed annually without a solution in the Brazilian Judiciary, in its various instances.

Dejudicialization, Administrative Protection and Negotiation

SUMMARY: 1. INTRODUCTION. 2. THE (MODERN) THEORY OF ACCESS TO JUSTICE. 3. MULTI-DOOR JUSTICE SYSTEM AND DEJUDICIALIZATION. 4. NEGOTIATION IN PUBLIC ADMINISTRATION. 5. FINAL SIGNALS. BIBLIOGRAPHY.

Author: Dr. Cláudio Cairo.

1. Introduction

From the Liberal State to the Social State, there was increasing public intervention in the economy and social areas, while in the transition from the Social State to the Post-Social State, there was a reformulation of state interventionist activity, with a structural change from entrepreneurial functions to regulatory functions, expanding society's leading role in fulfilling the constitutional program of pursuing the public interest, through participatory action, which can be direct (exercise of a delegated function of public power) or indirect (exercise of the function of supervision).

In this sense, a trend of specific legal discipline of the consensual relations of the Public Administration gains ground, based on a parity perspective, such as that advocated by Pedro Machete, in which the citizen, in the exercise of his subjective public rights, given his full legal integration in the Constitution and in the legal system, together with the intensification of the subordination of the Public Administration to the law, exercises a legal position of reciprocity with the State, placing himself as the holder of rights and duties.

ARBITRATION IN PUBLIC ADMINISTRATION AND THE STANDARDIZATION OF ARBITRATION CLAUSES IN ADMINISTRATIVE CONTRACTS

SUMMARY: 1. Introduction; 2. Some relevant aspects of the “arbitration” institute; 3. Arbitration in administrative contracts; 4. Arbitration clauses; 5. Standardization of arbitration clauses; 6. Conclusions; 7. References.

Author: Dr. Cláudio Cairo.

1. Introduction.

By presenting the points of view of the constitutional-administrative performance of the Public Treasury and its Attorneys' Offices, the work of commenting on the Tax Enforcement Law (Federal Law 6,830, of September 22, 1980) is the result of the intention to participate in the legal-scientific debates on the tax process in Brazil. These comments make evident the varied perspectives on the phenomenon of the Public Treasury's performance in court, establishing a complementary view of the tax enforcement process, especially after 29 years of its enactment.

In view of the advances of modern Financial Science, the financial activity of the State partially subjugates the private assets of the citizen, incorporating imperativeness into the tax phenomenon.

In turn, with the advent of the Federal Constitution in 1988, the State's tax activity finds itself faced with the strict discipline of constitutional tax law, as well as subject to a new tax prosecuting system, which incorporates values, principles and rules into the pre-existing normative system.

COMMENTS ON ARTICLE 22 OF THE CURRENT TAX ENFORCEMENT LAW

SUMMARY: 1. Introduction; 2. LEF and subsidiarity of the CPC; 3. Patrimonial Liability and Expropriation of Assets; 4. Duplicity of Bidding; 5. Low Price; 6. Personal Intimation of the Treasury and the Defendant; 7. Conclusion; 8. Consulted and Referenced Bibliography.

Author: Dr. Cláudio Cairo.