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Processo Penal no Processo Penal — Parte Geral - Col. Direito Penal. Conceito Ultrapassado de Direito Processual Penal 1. Conceito Moderno de Direito Processual Penal 1. Resumo de Direito Processual Penal. Faz parte de sua dignidade. Faz parte de suas escolhas essenciais. Seguir Respostas.
Seja o primeiro a seguir. Resumo de Direito Penal - Parte Geral. Apostila 13 com Direito Civil - Vol. Moreover, with the adoption of class representation together with associations acknowledged by the state, the government as well as the Constituent strengthened the corporate structure. The Union Act of Decree number 19, , the first one of the Vargas Era, did not mention middle class occupations.
Nevertheless, the Act that replaced it Decree number 24,, included among those who could become union members "those who practice liberal professions" e predicted the foundation of the National Confederation of Liberal Professions. Decree-law number 1,, which replaced the Union Act, also included higher education level professions and also anticipated the foundation of the National Confederation of Liberal Professions.
Decree-law number 2,, , an addition to the decree listed 16 occupations that were considered liberal professions, such as lawyers, economists, engineers and medical doctors.
The Consolidation of Labor Acts Decree-law number 5,, also dealt with the unionization of liberal professionals. The association desired to create a corporate entity, along the lines of the Paris or Lisbon Bar Association. According to legislation enforced at the time, it was mandatory for those who wanted to practice law to hold a degree in Law or to be approved in exams taken at courts.
Legislation was stricter with practitioners of law who officially fell into two different categories: attorneys in fact and solicitors. However, as Edmundo Coelho states, there was extensive professional freedom in the practice of law until and the State was not interested or equipped to do anything about it COELHO, , The expansion of law courses in the First Republic intensified professional competition. The services market and the state apparatus were saturated with practitioners and bachelors of law.
The State took steps to solve the problem, may be as an answer to pressure by the professional elite. However, limiting the practice of law became more effective after , with the work of the Brazilian Bar Association OAB, acronym in Portuguese for Ordem dos Advogados do Brazil , founded a few weeks after the victory of the Revolution in Therefore, the president of the Institute, Levi Carneiro, appointed a commission to draft the rules and regulations of the new entity.
The rules and regulations of the Bar Association were passed by decree number 22, , State councils would be assembled through direct elections in which all of the section's members would vote. Nonetheless, most of the councilors of the Federal District section would be appointed by the IAB and the rest would be elected directly by lawyers of the federal capital.
The same instrument would be applied to subsections of the OAB in capitals of states in which there would be a Lawyer's Institute affiliated to the IAB. In this way, the corporate organization would not empty the traditional voluntary membership association and would also ensure the influence of the Institute over the OAB.
The instrument consolidated the symbiosis between both entities. Finally, the rules and regulations established the mandatory payment of a yearly member fee paid directly in each subsection.
In the beginning, OAB faced resistance from lawyers themselves because of its role as a regulator of the practice of law.
There are reports of elite lawyers that would refuse to register at the Bar as if this demand were a threat against their professional freedom. The professional elite that embraced the OAB created obstacles to the practice of law. Their aim was to decrease service supply. In order to do so, it adopted three measures that are part of the rules and regulations: 1. The government regulated the professions of engineering, architecture and surveying by Decree number 23, in and these professions were now reserved to those who held higher education diplomas in these areas.
The regulation of engineers, architects and surveyors was the result of the mobilization of professional entities according to Marinho.
The decree also established the private activities of engineers, architects and surveyors in great detail. Regional Councils, subordinated to the Federal Council would be established in the States and in the Federal District.
The Act granted councils the strict responsibility of certifying and supervising professional practice. The Federal Council would have ten professional members, nine of which would be chosen by engineering and architecture schools, associations and legally recognized trade unions.
The only member chosen by the federal government would mandatorily be the president of the Federal Council. Revenue of the councils was reinforced by decree-law number 3,, , which established the compulsory payment of member annuity fees at the corresponding regional council.
It was a commitment solution, destined to allow for practitioners who were already on the field to continue to work but garanteing that they would be extint in that generation because new practitioners would not be included.
In that way the dictatorial state was ironically giving up interfering in the corporate organization. It represented the medical elite but was not a representative of corporate interests.
Medical Councils were founded by decree-law number 7,, on September 13th ,… with the task of watching over professional ethics in the practice of medicine. In this sense, they did not focus on professional regulation but rather on organizing entities that would watch over ethics in medicine and ultimately fulfill that role.
In fact, even though the decree did not mention accreditation for the practice of medicine, it mentioned that the oversight of medical practice was explicitly attributed to the Councils. Each state and territory would have its own regional council chosen by the direct vote of the registered physicians.
The Federal Council of Medicine would be directed by medical doctors chosen by regional councils. The decree stated that the professional association itself had to organize the councils by establishing that the first elections should be organized by medical unions. Moreover, it established that the code of ethics drafted by the Fourth Brazilian Medical Union Conference was the official one.
Act number 3, replaced the decree-law in The Act enacted by Juscelino Kubitschek regulated the practice of medicine in a more specific and detailed fashion, granting councils the responsibility to accredit and supervise medical doctors. The Act transformed medical councils into autarchies and consequently fell under state inspection.
Another measure that favored state intervention was the fact that the government would provide appropriate facilities for the councils. In terms of financial support, the councils still collected part of the union tax and an annual fee paid by all medical doctors to the council of registration was created. The professionals were free to choose their corporate leaders and voting in elections for the council was established as mandatory.
According to Marinho, the Medical Council was not well accepted by fellow medical doctors. As a consequence, several regional councils were not organized immediately after The council only consolidated itself in the s when doctors were able to guarantee its self-governance.
According to the author, this was the reason why medical doctors resisted the council.
One of the medical leaders of this period mentioned by Marinho states that article 14 of the decree-law was an evidence of the submission of the Council to the government MARINHO, , The piece of legislation established that the Ministry of Labor would decide cases unless otherwise stipulated and when doubts arose about the enforcement of the decree-law.
Part of the professional association did not approve the government's decision that physician's unions and the federation Brazilian Federation of Medical Unions should organize the corporate body.
They presented a draft project to reform the council and this is the origin of the Act. This piece of legislation consolidated AMB when it determined that the corporate body had to adopt the code of professional ethics written by the association and it established that one of the ten positions on the Federal Council of Medicine had to be occupied by an AMB representative.
Likewise, the Act determined that state medical associations that were affiliated to AMB would appoint one representative to the boards of the regional medical councils. When the New State was over, apart from law, engineering, architecture, surveying and medicine, the professions of pharmacists, agronomists and chemists were also regulated.
To summarize, one can state that the fundamental part in the corporate organizations of higher level professionals were the national and regional councils. In addition, to start working in one profession one had to meet certain demands such as pay the annual contribution, be registered at the council and especially have a degree in a higher education course COELHO, , As the analysis of the regulation processes of the several categories of professional middle class proves, one of its structuring elements was to limit the professional services market and reserve the market to individuals accredited by the corporation.
The concept inspired on Weber and used by the sociology of professions called closure is strategic to better understand post professional regulation.
In fact, direct action by the State or professional elites established exclusive areas to render services in which only those accredited the ones who had higher education diplomas could work DINIZ, , Closure was the way through which middle class professions were effectively regulated after the first Vargas Administration.
Before this period, as Edmundo Campos Coelho states, even though there were laws that restricted professional practice, there was great professional freedom, due to a lack of capacity or interest on the part of the State to enforce professional legislation.
Professional elites pushed back or at least limited the competition between practitioners and those who had higher education diplomas through professional councils. The competition in the services market of traditional occupations such as law, medicine and 8 engineering became intense after the end of the state monopoly in higher education established in the beginning of the republican period and with the oversupply of bachelor degrees in these areas.
Tables 1 and 2 show the continuous and important expansion of higher education institutions since the First Republic, as well as the increase in the number of students in higher education courses in the country. These facts triggered a political investment by professional elites in order to regulate professions in a corporatist way. Table 1.
Students enrolled in Law, Medical, Pharmacy, Dental Medicine and Engineering Schools in Brazil, Corporate duality: professional councils and trade unions Contrary to what happened to the bourgeoisie and workers, Brazilian corporatism provided the professional middle class with two different corporate organizations: professional councils and trade unions.
The government apparently conceived enclosed and non-coinciding roles for both. The former would be responsible for accreditation and inspection of professional practice. The latter would protect the economic interests of professionals. For lawyers, as will be analyzed in this article, this antagonistic relationship between councils and trade unions was always present.
It would be important to investigate thoroughly the nature of the relationship between these two bodies in other professions, such as doctors and engineers, where councils were organized by trade unions.
Considering Schmitter's interpretation the professional councils triumphed over the trade unions. Schmitter points out the low record of unionization of the professional middle class, explaining it by the existence of voluntary association organizations and by mandatory affiliation to professional councils that articulated the interests of the professional category SCHMITTER, , Even though I agree with Schmitter's thesis, I propose to divide it into different scales because professional middle class involvement in unions varied 8 This definition was less precise for lawyers.
The OAB regulation established that one of its attributions was to defend the practice of law, which would be close to the role of trade unions. I will use the data presented in the tables below to further elaborate this second point. Table 3. Comparison between unionized and total figures of assorted professional categories of middle class in Table 5. Comparison between unionized and total number of lawyers, to Before analyzing the figures shown, it is necessary to make a warning against the relative instability of data on tables 3, 4 and 5.
Adalberto Cardoso acknowledged the relevance of trade union data collected by the IBGE and warns about its limitations. Between and , participation in union inquiries varied from Data about the number of trade unions seems to be more reliable than the number of members since the Ministry of Labor registered trade unions.
In general terms, data from tables 3 to 5 suggest a progressive increase of unionization of middle class professions. Except for two short periods from to and from to , union numbers grow until the mids.
The percentage of unionized middle class professionals also rose during the s. In there were 10, unionized liberal professionals; the census revealed the existence of , liberal professionals in Brazil. In there were 21, unionized liberal professionals; the census revealed the existence of 78, liberal professionals in Brazil. Using an imperfect calculation, considering data from different yet close years, we would respectively have 8. Table 5 shows stability in the percentage of unionized lawyers in the s and a significant increase in the following decade.
Still, the unionization level of lawyers in 10 was close to the unionization rates of other prestigious professions also included in the corporate system, such as engineers and physicians, which had surpassed it in Unfortunately, we do not have data regarding the unionization rate of professions listed on Table 4, which would allow us to compare the lawyer's unionization rate to the ones of other middle class professions during that year.
Two central elements shed light on the relationship between the professional council and the trade union for lawyers. The first one is the OAB's resistance to acknowledge lawyer's trade unions. The second, is related to the professional category itself which by becoming increasingly wage related, made new demands that were supported by existing trade unions and specific voluntary affiliation associations.
The OAB's role of defending lawyers, written in its bylaws was historically less emphasized by the leadership of the organization until mids and it meant protection of the practice of law against any arbitrary decision by the government or the Judiciary.
From that moment on, the defense role incorporated the social protection dimension of lawyers. Consequently, for the first time in history, the Federal Council was forced to take on a demand that came from the professionals MATTOS, , News of the foundation of organizations to compete with the OAB on the trade union realm was present in the beginning of the s. The study The trade union only had 35 lawyers and, after this recognition the government decided to lower the determination to collect an union tax from all professional categories that reached approximately four thousand lawyers.
Interestingly, lawyer's elites feared trade unions rise because they could eventually work for the government and be led by leftist lawyers. Likewise, it sought to protect the representational monopoly for OAB professionals. And more importantly, it exempted lawyers from paying the annual fee of the union tax to the Bar. Since the annual fee was mandatory all lawyers were then exempted from paying the union tax. Nehemias Gueiros revealed the strategy used in writing the project of the new constitution and bylaws of the organization: 'Unions only proliferate and flourish because of the compulsory status of the union tax This instrument declares that lawyers who pay the annual fee to the Bar Association will be exempt from paying the union tax.
The OAB Federal Council took a stand against this agreement which was a clear confrontation to the organization's desire to exclusively represent the interest of lawyers. Nehemias Gueiros in a speech to the Federal Council on the matter asked for vigorous response to what seemed in his opinion to be an encroachment of an attribution that belonged to the Bar Association GUEIROS, , Rio de Janeiro: Folha Carioca Editora, , p.
The instrument was preserved in the Constitution and Bylaws of that stated on article that 'The payment of the annual contribution to the Bar excludes its members from compulsory payment of the union tax. It shows the attempt of the Goulart Administration to profit from corporate duality, establishing communication with the professionals through an organization that was tendentiously closer to them than the OAB.