THE IMPORTANCE OF PREVENTIVE-ADVISORY LAWYER
Since few of my articles I wrote, I felt so free to conduct the theme on this, it was born of a lived experience outside the academic banks, as well as outside also the formalities of legal activity.
There are about a week ago I was at a restaurant to celebrate the approval of a friend who managed to get success of passing a public tender of great national expression. On this day, there were other people who did not know, where I just knowledge. Among them, a Dutch that soon, greeted me with "hello" with little accent. He had told me that acted as an advisory lawyer, providing legal services in your country and other neighbors. Soon, he began comparing the conversation. The first question I asked: "how is justice in the Netherlands?" Answer, albeit subjective, said: "I do not know exactly explain it, because cases are somewhat rare to promote certain action. I work even through legal advice ". Extending the conversation, she asks, "the Brazilian attorney acts more in consultative or more in litigation (through lawsuits)?". My answer was: "Unfortunately, the Brazilian lawyer, in general, works in the litigation, whether any situations. Rarely does anyone looking for a way to advocate preventive and advisory ". Soon, she says: "I read, there is a time in the BBC that the Brazilian Justice is slow. Perhaps this is one of the reasons. " Without going into the merits of their view, after informal conversation that day, throbbed in mind a question at all: why we are contentious? See, in just a casual conversation that culminated in a process of reflection, although any response to be troublesome or even subjective, however, this process of reflection is necessary to at least understand it are paths or just fortified borders on the subject .
Admittedly, we are a litigant country, that is, any situation can end up in court. Are statistics and speeches by various public authorities confirm this statement. Of course, we must separate what there is no alternative but the provocation of the judiciary to law enforcement, producing an equal justice. Other rides, we must understand that not all cases bail of Justice, may provide alternative means, such as conciliation and extrajudicial agreement. Also, as a technique to resolve conflicts, the parties may promote Arbitration, based on Law no. 9,307 / 1996 and Law n. 6404 with recent amendments to Law No. 13,129 / 2015.
Also, only preventive situations, ie, avoiding any losses that occur involving financial matters or not. At this point, we have two major problems which come from his actors, one by the lawyer, the other by the client or requester. If we analyze in relation to the service provided, the lawyer must be enabled for the task in the advisory role. Unfortunately, vocational training have a vacuum, given that, Brazilian universities did not fit the social factors used, for example, within the curricula worrying on more theoretical questions than practical, just the constant change, both laws, as social facts and events, and more dificultoso accompany them. Yet, when attorney career start in the rush to "do justice" for those who hired him in the first position, then says, "we have to Sue to this ...". At the University, one learns about action, process, deadlines, resources, etc. Now we are experiencing soon the New Code of Civil Procedure, also infecting other Justices, whether federal, state or expert level, as Election, Labor, Military, governing bodies, etc. In its materiality modify some questions about procedures in civil law, tax, business, etc. Not make it enter on the Code's perspective, only demonstrate that the professional is already presented to you to be a litigator.
Also, we can not blame the educational institutions only because not taught subjects that would help the future professional, and it's up to this arrest knowledge beyond legal areas such as business, economics, foreign trade, among others, in order to pose the greatest effort in the performance of a law (a legal activity that fits), preventive presenting modernity and ability to understand, for example, avoiding disputes to their customers. We must also stop the domain in particular legal area for facilitating the advice, however, are due to meet other related areas in order to harmonize all the work to be developed, as well as other languages. It is more profitable customer satisfaction acting in advisory because the work of the consultative and preventive lawyer will provide greater speed at work, making it easier to be recognized, as well as the client's future effects will be more satisfactory.
On the other hand, we see a Brazilian culture in promoting lawsuits (it indicates statistical tables). Perhaps this is the state of collective accommodation, hiring a lawyer only when the incident occurred and there is no solution. Sit down to hear a legal professional is very important as a long or short consultation can make a big difference.
It is worth noting that several areas, sectors, facts, among others, is required for a legal professional acting as a consultative / preventive.
For individuals, the lawyer can be found in several areas. The tax can be consulted on particular activity that can be exempt or taxed, for example, in relation to the ICMS or ISS, which collect them and who receive in a given case. Tax planning can also be applied to individuals, aimed to pay less tax, since acting in a lawful manner.
In Civil Law we have several situations, such as contract writing or even reading the contract, opining lawyer whether a contractual clause is correct or not, to which possible future effects. In family and probate, the professional can develop stable union contract as well, will draw up, act of last will of his client, opining that kind of will is the most appropriate. Another progressive way is the use of family businesses, applying the institute of the holding companies in order to resolve any disputes between relatives with regard to material goods, leaving the lawyer to draw up strategic plan. In real estate, the advisory role should be more valued, using the professional preventive means so there is no financial risk to your customer.
Copyright on there can be extensive interpretations in the contracts, with the professional acting to curb any flaws.
Administrative Law, the professional can help consultivamente on behalf of public servants, not only acting in defense of administrative processes, as well as dealing on the retirement of civil servants, revisions to these and etc.
In the Social Security area, the customer can hire a professional to, for example, make a mapping to see if the person is entitled to disability retirement, by age or special, as appropriate, assisting all the necessary documentation to the INSS (National Institute of Social Security).
Internationally, may involve issues of customs duty, visa, passport, citizenship and address on goods in Brazil and abroad, relating to contracts, marriage, inheritance, etc.
For legal entities, such as public companies, joint stock companies, associations, associations, organizations, institutes, private companies, as individual company of limited liability company, EIRELI, business societies (LTDA and S / A) Overall, also need a support legal, this professional must follow every trend needed to chaining activity.
In administrative law, the professional can be found in more common cases, as bids and government contracts as well as public-private partnerships, issuing opinions and views. For private companies is interesting that the lawyer act from beginning to end of the bidding, acting permanently.
In Business Law is allowed adequate and targeted action pointing any risks in the beginning until the end of society. One can give a dimension of corporate planning, for example, eliminate any doubt what type of company is best suited to a particular case, or even the form of reorganization of society. Day by day, the analysis of business activity contracts is one of the primary ways for preventive action, pointing out errors in contracts already signed, thus giving their opinions on new contracts.
Labor Rights in preventive activities is summarized in the adequacy of business activities before the labor standards in order to avoid lawsuits.
Regarding the Tax Law, preventive and consultative application is related to tax planning, in order to pay less taxes, acting as sparse tax rules.
In consumer relations the problem is even greater, as it is expressive volume of lawsuits in this area and the preventive action might result in better business performance, in order to avoid compensation for material damages, pain, loss of profits, any and any other species provided by law. By the way, it is also related to business law, as it is linked to economic factors of the company.
Labour Law, the adaptation field of labor standards is the necessary tool to reduce the scope of lawsuits in which employees require in court. Of course, be in compliance with the rules (usually) less we will have demands.
Also we can list some sectors that currently need a consultative-preventive law, such as: Health: consultation will be relevant standards, such as health. There is the private health sector with health plans, leaving, in most cases, monitoring of Law n. 9656/1998, the Consumer Protection Code, Civil Code and all regulations of the sector acts as the Normative Instructions of the National Supplementary Health Agency ANS. The main plan is to prevent others demanding in court and face of service providers, taking into account best improvement activity. Construction: the advisory activity will be as many guidelines based civil industry standards, as well as public standards. Financial and telecommunications institutions (banks): they are sectors with the most lawsuits. The application of the Consumer Protection Code, along with labor laws (CLT) can (could) better and in the activity. Political parties: to summarize performance in the interests of the parties and their candidates should anticipate to the problems inherent in the Electoral Law and the Civil Law, and other related areas. Trade (no activity): diverse areas can be found, such as tax, business, consumer, labor, social security, among others.
In face of all the above exposition, the importance of preventive law reveals as a major factor of combustion of activities to be performed, leaving all of Brazilian society understand this necessary force. The lessons that accompanied reflections of this text hold as valuable as a casual conversation led to the proliferation before the vital social anxieties, being utopian and surreal promote a state of perfection by the lawyer, but at least provide minimization means of legal demands as a means of implementing the 1988 Federal Constitution, regulatory apex, as well as the laws below it. Ethical aspect can not be overlooked, since the contractor services needs sincerity in dealing with concrete results and effects.
Another important point, the advisory service is not free , can not even be charged demeaning manner. The professional to value the services to be provided under the following table of attorneys' fees of the state as basis and analyze the complexity and which areas of activity, being paid individually by appointment or by monthly figures. As there is a slogan: "respected lawyer, respected citizen" as the OAB has disclosed.
People (in general) of Brazilian society must create the importance of the consultative and preventive lawyer in order to avoid any problems related to developed sectors and activities, thus, the legal rules applying productions are more visible and balanced, not entailing "dead letters or forgotten."
 A critical importunate: society is not used to understand the lawyer's advisory activity, always tend the "knack" as opening sites, forums, etc., in order to prevent lawyers receive the fees payable by their services. A legal opnion should not be taken into account if it is not produced by a qualified lawyer, so the professional respect comes from culturalism. Vale that maxim: "Respect me to be respected."
BUSINESS IN SOCIAL NETWORKS : Access and prevention of legal risks in Brazil
Today, social networks are already part of everyday life in Brazil , following the global trend . And who does not remember the major events that occurred ? If it were not for social networks would not have the same historical value provided . It should be mentioned that the world has changed with technological developments , because the ease of access to information becomes faster and faster , just a ' share ' .
We note as a starting point a definition of " social networking " sites such as where the user signs up and begins to find communities with subjects that interest you , music , sport , leisure , politics , religion , TV shows etc. . And yet , you can find a friend, meet people and add it to your profile.
We have seen that many companies are increasingly are using social networking to publicize their products and services to be offered to its audience .
In this sense , one can say that we are experiencing the era of " brands " in social networks , hence , companies need to promote the concentration camp in asset protection assets such as reputation in society .
Thus fulfilling this protection as pertains to the reputation that everyone should create methods to be implemented regarding the use and moderation of content published through social networks, both for its employees and by third parties . The first action will be to your employees, monitoring them , however, these being aware of this frequent monitoring because eventually there may be a punishment for committed excesses .
To be moderate release of data through social networks, and the Internet as a whole , you need a primer for pipelines to be assigned will be of great value . In this booklet, pipelines , common postures are recommended applicable in the employment relationship , with the educational scope, affecting even the legal means vector as guarantor .
Internally , for trademark protection on social networks , you need an official concentration , ie the company through its employees shall officially take control of all social networks, and avoiding others from misusing this position . Must be created all means attesting their officers . On the social network Twitter , for example , created an auditing manager at the site claiming to be official .
Elsewhere , we can say that those managers should address the social networks just about the concerning company matters, but never taken secret or valuable information , such as promotion of a photo of a new product without the consent of his superiors . In particular , the employee may be dismissed for cause , and terminated his contract of employment , pursuant to Article 482 , " g " Consolidation of Labor Laws , " CLT " , as a violation of trade secrets .
We imagine yet, a company official disclosing intimate photos of children or adolescents , as would cause the harmful for the company . Alias is a crime under Article 241 of the Statute of Children and Adolescents.
Another point in question is related to music , videos and other content without permission of the authors share. Note that , the company should be allowed to as much as the use of all devices , under penalty of copyright infringement under Article 184 of the Penal Code , besides paying compensation to the author whose work has been violated , as provided articles 107 and 108 of the Copyright Act ( Law no . 9.610/1998 ) .
And in relation to acts of third parties , the company must prove injury, since Article 927 of the Civil Code , which provides that a tort cause harm to others, is obliged to repair it .
Moreover, in a situation , if a person does impersonate another person ( company , as it has its own legal personality ) can answer for the crime of " false identity " as provided in Article 307 of the Criminal Code , and such conduct is practiced with obtain benefit or harm the company , in which , the injury is intangible . The penalty provided is imprisonment from three months to one year or a fine , if the fact does not constitute a more serious crime element .
Given these scenarios exposed in printed above many laws , the company must take certain preventive measures in order to prevent such situations in the social networks and, therefore , a primer and internally developed and published along with the performance fiscalizatória , both internal and external are able to propagate a healthy and able to generate high financial returns due to the power of social networking virtual environment .
Finally , we present some tips , in addition to the above :
1 ) The registrations on social networks should be named the company's own fantasy by name or by reputation in society ;
2 ) Never let personal opinions that expose their employees , using good judgment ;
3 ) Avoid opinions and enter into a debate on controversial issues taken . Although it is in direct contact by the company , you can spend an indirect message defensively . An example of this case we have the famous Coca- Cola and the " mouse " . The company did not fight directly to society of accusations that had a mouse inside the bottles instead . As there was a lawsuit , avoided treating on the subject , presenting only indirectly , in their defense , as they are produced packaging company ;
4 ) Not at present in social networks the intimate life of the company too , as daily routines ( timetables, routes, schedules , etc. . ) . Should be organized only later events , such as photos on Instagram or Facebook event in a given state ;
5) Promote internal debates about the use of social networks and educating everyone on moderate use , that also guide their families and friends that surround avoiding any leakage of information ;
6 ) publishing company information is essential . So you should always be on the agenda which should be considered public information . Meetings with managers from different areas can cooperate to this end ;
7 ) The employment of language in any language should have an appropriate word avoiding subjectivities , ambiguities and interpretations which may be distorted . Note that , distinct from subjectivity and authenticity , so the more differentiated and more popularity will personalistic .
8 ) any responses to third parties should be answered only by the competent area , avoiding an "internal duel " in the company as opinions .
For ultimate , social networks are excellent communication and interactivity , and as I said José Abelardo Barbosa Medeiros , known as " get-together " :
"Who does not communicate if trumbic
The "Recall" and Consumer rights in Brazilian Law
First, it is important to highlight the responsibility of the cultivator of law in society with regard to the character informant concerning certain legal institutions , including little known .
Entering directly on the topic , advertisements informing about the " recall " of various products that are more common . However , a question arises , after all, what is " recall " ?
" Recall" from the English , which has several meanings for Portuguese , as remember, remember , remember , recall , cancel , etc. . Any uses of these words have the same meaning when we are pointing to the institute in the Code of Consumer Protection . Incidentally, the " recall " is very common in first world countries .
Code of Consumer Protection ( Law n . 8.078/90 ) , the " recall " is provided for in Article 10 , § 1 , " in verbis "
"Art 10 - The supplier can not place in the consumer product or service that you know or should know, are highly harmful or hazardous to health or safety "
" § 1 - The supplier of products and services that , after its introduction in the consumer market , is aware of the danger they present , should report it immediately to the competent authorities and consumers through advertising ."
In this vein , the supplier of products and services , when placed circulation market a product or service and taking notice of the danger presented shall notify all , therefore , the competent authorities as well as their consumers through advertisements.
It should be mentioned that, through this instrument , the standard protectionist want the supplier to prevent or seek to prevent , albeit belatedly , that the consumer suffers any damage or loss related to addiction that the product or service have submitted after marketing . P. eg. a buffer that left the automaker presented operational problems and come from the same batch arising from its manufacturer , is more likely to repeat the problem in cars already on the market , so that vehicles already sold should be " called back " .
Also, the disclosure in an advertisement must be broad and general ie able to reach the population as a whole , using any effective means for applying to the principle of advertising to the consumer.
Despite the supplier of products and services out of circulation , a question arises : And even acting this way according to the law disclaims liability ? The answer is negative . Here are the arguments .
The responsibility of the provider of services or products is straightforward , since the Consumer Protection Code prescribes in this sense :
"Art 12 . The manufacturer , producer , manufacturer, domestic or foreign , and the importer liable, regardless of fault , for repairing damages caused to consumers by defects resulting from design, manufacture , construction, assembly , formulas , manipulation , presentation or packaging their products , as well as insufficient or inadequate information about their use and risks "
As the article above , those listed respond when their liability , regardless of fault, and shall repair any damage caused to its consumers . In the case of " recall " , found out a manufacturing defect in which the supplier of products and services or withdraw from circulation to avoid losses , even though you know , under the law , can be responsible for any damage during the time it is outstanding .
In this regard , the Court of Rio Grande do Sul has responded to First Instance in Civil Appeal no. 71003384989 :
" LIABILITY . INDEMNITY . MATERIALS AND MORAL DAMAGES . ACCIDENT WITH MOTORCYCLE . SUBSEQUENT RECALL . LIABILITY. FACT OF THE PRODUCT. DUTY TO REPAIR THE DAMAGE AND MORAL .
1. Complexity of the case inocorrente . Not exist any complexity in the cause , give rise to the incompetence of the JEC for the trial of the suit . It is not necessary to carry out expert evidence in this case , given that all the evidence docked done, especially the release of " recall " to replace the throttle body , leads to the conclusion that the defect involved in accident with author .
2 . Having the author suffered a motorcycle accident a few months after purchase , due to fall by not responding to commands motorcycle acceleration , and having received a statement from manufacturer , after the accident on identifying consistent problem in " slow return of accelerator , which may lead to loss of control of the motorcycle with eventual downfall , " is evident the cause of the accident .
3 . It is responsible for the fact the product, which is objective , as stipulated by art. 12 CDC . Thereby demonstrated damages arising from defective motorcycle, which caused the accident suffered by the author , indicating the duty to indemnify the losses .
4 . With regard to damages , demonstrated impairments resulting from damage to the motorcycle, which achieves the smallest budget of R $ 2,685.00 , medical expenses in the amount of R $ 366.00 and use of third party services for professional activity by three months , the amount of R $ 2,700.00 to R $ 5,751.75 .
5 . With respect to damages , highlighted the suffering of the author , due to the violation of their physical integrity . Quantum indemnity set at $ 3,000.00 , which does not include mitigation .
Sentence maintained by the fundamentals.
Action is devoid "
Certainly , the compensation for damages as well as punitive damages should be assessed case by case, in the latter case would apply the principle of the duty of confidence , as consumers opted to hire or buy a product not only the price but also demonstrated by the notoriety .
Issues on Consumer Law - Questions and Answers
1 ) Applies to the CDC condominiums ?
A: In theory , it applies the Code of Consumer Protection , however, in certain cases apply to condominiums , according to the case. By way of illustration see the menu of the Court of Justice of the Federal District :
" COLLECTION . CONTRACT . SERVICE . CONDOMINIUM . ADVISORY NOW . DEFAULT . REQUEST opposed . PROOF .
I - The CDC AND APPLICABLE TO CONTRACTS ADVISORY , GIVEN BY COMPANY SPECIALIZED IN THE CONDO IS RECEIVING END OF SERVICES . ARTS . 2 AND 3 OF THE CDC .
II - A REVIEW OF CONTRACT unfeasible postulated BY DEFENDANT IN PLACE OF PLEA.
III - BEING CONFESS THE BREACH , THE PROVISION IS DUE UNDER THE CONTRACT WITH THE RESPECTIVE late charges .
IV - ACCEPTABLE ALTHOUGH THE REQUEST opposed THAT BLOW THE SAME FACTS DEDUCTED AT HOME , IN ACCORDANCE WITH ART . 278 , § 1 , THE CPC is dismissed A CLAIM , WHEN THERE IS NO PROOF OF LIABILITY AND CAUSAL NEXUS BETWEEN THE SERVICES AND THE DAMAGE ALLEGED . " ( Emphasis added )
2 ) Applies to the CDC accident inside the mall ?
A: It is considered to apply the CDC in cases of accident inside the mall because it is the legal relationship service . In practice , the courts have applied in these cases , STJ , REsp 279273 SP 2000/0097184-7 :
Liability and consumer law . Special Feature . Mall Osasco - SP . Explosion. Consumers . Material and moral damages . Prosecutor . Active legitimacy . Legal entity . Disregard . Theory larger and smaller theory . Limit of liability of the partners . Code of Consumer Protection . Requirements . Obstacle to recover damages caused to consumers . Article 28 , § 5 .
- Considered the consumer protection a pillar of the economic order , and instructing the prosecutor to defend the law , the democratic regime and the inalienable social and individual interests , has the Ministerial Body to act in defense of individual interests homogeneous consumer arising from a common origin .
- The theory of greater disregard generally the Brazilian legal system , can not be applied to the mere demonstration of being insolvent corporation to fulfill its obligations . It is required here , in addition to proof of insolvency, or the demonstration of misuse of purpose ( subjective theory of disregard ) , or demonstration of confusion sheet ( objective theory of disregard ) .
- The theory of disregard smaller , hosted in our legal exceptionally in Consumer Law and Environmental Law , relates to the mere proof of the insolvency of the corporation for the payment of its obligations , regardless of misuse of purpose or confusion equity .
- To lower the theory , the normal business risk economic activities can not be supported by the third party contracted with the corporation , but by members and / or administrators of this , yet they demonstrate conduct administrative probability , ie, even if there able to identify any evidence of willful or culpable conduct on the part of shareholders and / or directors of the corporation .
- The application of the theory of lower disregard to consumer relations is grounded in autonomous exegesis of § 5 of article . 28 , the CDC , because the incidence of this device is not subordinated to the statement of requirements stated in the clause , but only proof of cause , the mere existence of the legal entity , obstacle to recover damages caused to consumers . Minister ARI Pargendler Third - Class - STJ .
3 ) What are databases of consumer relations ?
A: Database and records, called credit protection service , which are detrimental to consumers registered . The art. 43 CDC states that the consumer has the right to access to information in existing records, records , records and personal data and consumer filed on it , as well as their sources . And in the first paragraph of that article says , the register should be objective , clear , true and easily understood language , stipulating inclusive term of up to five years to continue the registered consumer. In the second section , says consumers should be informed in writing of the information contained in the register . The third item , is that if the data are not exact , the consumer may require the immediate correction , fitting the archivist within five working days , report the change to the eventual recipients of incorrect information . Finally, the fifth section , states that if the consummation regarded the collection of consumer debts , will not be provided by SPC , any information that hinder or prevent further access to credit along to suppliers . In summary, for a better definition , the databases are : any public or private provider and containing consumer data relating to your person or their actions as consumers .
For the consumer that is negated , must satisfy three requirements :
1 ) Existence of debt
2 ) the expected date of payment won
3 ) The value is net and right .
4 ) What is the maximum period for which the information about the consumer is in the database?
A: According to art , .43 , § 1 , of the CDC , the maximum period for which the information of the consumer remain in the database can not be greater than five years , but may be shorter terms , like the securities : check, six months after the submission , duplicate, three years against the drawee , counted from the expiration of the title.
Contributing to the normative parameters with the aim of strengthening it Precedent 323 of the STJ , reads as follows :
" The insertion of defaulters can be maintained in the services of credit protection for a maximum of five years."
5 ) It is appropriate habeas data against database of consumer relations ?
A: Yes , it is appropriate habeas data against the database, since the art. 5 of the Federal Constitution says :
"Grant will habeas data :
a) to ensure the knowledge of information concerning the person 's penetrating, contained in records or database from government or public character ;
b ) for the correction of data , when it is not predicted to do so through confidential , judicial or administrative "
Thus, the Credit Services Protection ( SPC ) has information related to their public character , for companies in general , banks , industries , traders can make queries , is characterized as a public service , albeit restricted to the commercial sector , the disclosure is wide, so let it be repeated , is the appropriate constitutional remedy of habeas data against database of consumer relations .
6 ) It is appropriate damages for improper insertion in database?
A: The answer is positive . But first you must meet the criteria for fixing the damage , such as :
a) Nature of the offense specifies suffered ;
b ) Intensity real, concrete , effective consumer suffering offended ;
c ) Impact of offense in the social environment in which the consumer lives offended ;
d ) Existence of intent ( bad faith ) by the offender , or damaging act and the degree of his guilt ;
e) The economic situation of the offender ;
f ) Capacity and real possibility and effective offender's return to practice and / or may be responsible for the same fact harmful ;
g ) Practice before the offense on the same fact harmful , so if he committed the same fault;
h ) The mitigating practices performed by the offender in order to decrease the pain of the victim ;
i ) the need for punishment.
Put such considerations , in the matters of fixing the damage , it must stand up to enter the consumer unduly database would be to collect it improperly , but not the same legal meaning .
Analyzing the letter "A" , the specific nature is improper insertion into the database;
The letter " B " would be an exaggeration to say that they have been suffering the consumer , but rather generates disorders actual intensity , concrete and effective .
As the letter " C " , since they suffice to characterize the offense in improper insertion of the consumer in the register of defaulters because it affects an offense in the social environment .
According to the letter " D " should be evaluated in this case there is the existence of malice on the part of the offender.
The letter " E" has discretion as conferring that , in economic relations , the consumer is regarded as the weaker economically than the supplier or service provider .
As the letters " F " , "G " and " H " means that the improper insertion of the consumer in the register of defaulters runs only once , but there are certain cases in which there has been a recurrence , can also give as a reason to increase the amount of compensation .
Finally , the letter " I" , there is another possibility as punishment to the offender . Have pedagogical before the social environment , serving the brake offender never again cover the same error .
By way of illustration, just reading the excerpt from the voting Minister Maria Isabel Galotti , in AgRg in EDCI in TORT OF INSTRUMENT No. 881 401 - RS ( 2007/0072336-5 ) :
" The damage is caused by improper registration . The possible absence of prior communication is an integral element of the event took place , calling it , which can influence the amount of compensation and the allocation of responsibilities , a circumstance that should be taken into consideration in the action for damages brought against an author of the harmful act or against both. "
Finally, we should mention that the existing debt , there will be no doubt that the name must be entered in the register of consumer default.
7 ) What are the laws of the State of São Paulo on telemarketing ?
A: Law São Paulo fell by regulating the issue of telemarketing telephone . Law No. 13.226/08 , see the misfortunes of protecting the consumer telemarketing calls , calls banning these companies to consumers who do the registration number of the phone .
8 ) The prohibition of state law there exceptions ?
A: Yes , the law does not apply to charities , but applies to both landlines as mobile . The registered proprietor of the line you get a telemarketing call should report Procon . A company that fails to comply with the registration shall be subject to the penalties provided in the Code of Consumer Protection .
9 ) What is abusive collection ?
A: Billing is abusive all acts of embarrassment , threat or exposure to ridicule to collect the debt from the consumer . Let's look at the art. 42 CDC :
"Art 42 . In debt collection , consumer defaults will not be exposed to ridicule, or be subjected to any kind of embarrassment or threat.
Single paragraph . The amount charged to the consumer has the right to undue repetition of the overpayment by an amount equal to double that paid in excess, plus statutory interest and indexation , except in the case of justifiable error " .
10 ) What is reflection period ?
R : The art. 49 depicts the CDC :
" The consumer can withdraw from the contract within seven days from the date of its signing or the act of receiving the product or service where the hiring of providing products and services occur off-premises , especially by phone or home . Single paragraph . If the consumer exercise the right of cancellation provided for in this Article , any amounts paid in any capacity during the period of consideration will be returned promptly , updated for inflation . "
Therefore , in order to have characterized the reflection period , pursuant to art . 49 , the consumer can withdraw from the contract , within seven days from the date of signature or receipt of product or service , since off-premises , such as by phone or domicile . In the case of " off-premises " can also house sales made via the Internet , as it is as a form of a business , ie , within the prospectus physical , because the consumer had no way to physically see the product or analyzing service " to the naked eye ." This understanding , there are differences , since for some internet becomes more a business and web site as a host . I do not see this understanding as advisable because , despite being inserted the Website as commercial property , however, is not physically a commercial establishment .
11 ) Applies to the CDC professionals ?
A: No , it is inapplicable Code of Consumer Protection to professionals, although they provide services , application is another institute regulations, the Civil Code .
The only exception to the rule is to be applied to the provision of Art . 14 , § 4 , of the CDC , which says :
" The personal liability of professionals shall be determined by checking the negligence or willful misconduct ."
12 ) What is the rule of interpretation most favorable to the consumer ?
A: The rule of interpretation most favorable to the consumer lies in art. 47 CDC , states:
" Contractual clauses will be interpreted more consumer-friendly ."
Therefore , the contractual clauses must be applied towards the consumer , since this is considered the weakest of the legal relationship , so called hipossuficiente .
13 ) What is the guarantee ?
A: Each and every product or service is guaranteed in order to preserve the quality , safety , performance and durability ( art. 4 , "D " , CDC ) , described in a contractual or not . There is no contractual guarantee , nothing needs to be placed , unless the vendor wants to say that the legal guarantee for the product or service is 90 or 30 days ( depending on whether the product or service durable, respectively) . So in this case , will have to be explained guaranteed by law .
14 ) What are the rights of the consumer , if any defect in the product or service ?
A: The consumer has the right to seek redress of harm to the manufacturer , producer , builder , whether domestic or foreign and importer , has all these responsibilities , regardless if there is guilt, must repair the damage caused to consumers by defects resulting from protect , manufacturing , construction, assembly , formulas , manipulation , presentation and packaging of their products , but also by insufficient or inadequate information regarding the use and risks ( cf. art . 12 , CDC ) .
In art. 18 CDC , we have to call several liability , " in verbis " :
" The suppliers of durable or nondurable jointly liable for defects in quality or quantity to make it unfit or unsuitable for consumption as intended them or diminish their value , as well as those arising from the disparity with the information contained in the container , packaging , labeling or advertising message , observing the variations due to its nature , the consumer may require the replacement of the defective parts . "
Already, in § 1 of the same article says :
" Not being addiction cured within thirty days , the consumer may require , alternatively , at its choice :
I - the replacement of the product by another of the same species , in perfect condition;
II - the immediate refund of the amount paid , adjustments, without prejudice to any damages;
III - proportional reduction of the price . "
Therefore , suppliers will have thirty days maximum , the consumer can choose the product replacement by another of the same species , in perfect condition; pecuniary refund of what was paid , adjusted for inflation and there is no prejudice to any damages; or that the consumer choice by proportional reduction of the price because their addiction.
15 ) Failure of contract necessarily generate damage ?
R : by itself , does not generate damage the breach of contract , because , first, in case of noncompliance the clauses of the contract itself serve to resolve the issue , as in the case of application of interest, fines , etc. . Secondly , one should analyze the case therefore be applied to moral damages must be stated requirements such as : Nature specifies the offense suffered ; Intensity real, concrete , effective consumer suffering offended ; Impact of offense the social environment in which the consumer lives offended ; Existence of intent ( bad faith ) by the offender , or damaging act and the degree of his guilt ; economic situation of the offender ; capacity and real possibility and effective offender's return to practice and / or may be responsible for the same fact harmful ; practice before the offense on the same fact harmful , so if he committed the same fault; mitigating practices performed by the offender in order to decrease the pain from the offended ; need for punishment ( cf. Rizzato Nunes , are considered the criteria for fixing the damage ) .
16 ) What is the membership contract ?
A: As defined in Art . 54 , the CDC , the adhesion contract is one whose clauses have been approved by the competent authority or established unilaterally by the supplier of goods or services without the consumer to discuss or modify its contents . In the contract the supplier shall, without the participation of the consumer all you want to do, how to choose or create products that either manufacture or the service you want to offer , distribute and market all so unilaterally , without the consumer hunch or participate as it is only the consumer adhere to the contract .
Eg in health plans , bank loan, home financing , insurance contract , signature cable TV , etc. .
Typically , the adhesion contract is drafted by the legal department of the supplier and played hundreds of times , so that each consumer buys the product or service as the printed pattern .
17 ) What are abusive clauses ?
A: According to art . 51 , IV , CDC , abusive clauses that establish obligations are considered unfair (which offends fairness ) , abusive , putting the consumer at a disadvantage exaggerated , ie , incompatible with good faith and equity ( balance ) in consumer relations . Thus , taken clauses are void of the law relating to the supply of products and services ( art.51 , CDC ) .
18 ) What is reflection period ?
A: When the consumer buys a product or service out of the trade and the consumer does not have physical access on this , will have seven days to return it . In this case , also applies to purchases by TV , internet , newspaper ad , email or even by phone .
19 ) What is likelihood of the claim and what is its importance ?
A: It is the consumer version of the plausibility or that the consumer version has contours of reality. We can draw on art. 6 , VIII , the CDC 's claim that the burden of proof is the facilitation of the defense of consumer rights against justice in his favor , and for wisdom to rule with the Office of reverse burden of proof , as an important process , unlike what happens with the civil law that the " proof incubate whom the claims ."
20 ) When will the reversal of the burden proof ?
A: There will reversing the burden of proof when the consumer submits the fact and who should prove otherwise is the provider of the product or service .
21 ) What are records of consumers ?
A: The registration is incumbent upon the consumer Credit Protection Service , to which the default will be entered into the internal database so that the vendor check .
22 ) How long is the permanence of consumer name in the database ?
A: The period during which the consumer name of the database is in a period of five years and may have a shorter term , as in the case of securities , such as checks .
23 ) What is binding offer ?
A: Offer is binding any information or advertising that is sufficiently precise , in any form or medium with respect to products and services offered or displayed , which the supplier vehicular use , integrates the contract that may be entered ( art. 30 , CRC). Means in the announcement made to the supplier must be linked to the consumer , which is why balance the relationship between supplier and consumer. For example, an ad unit 3 in 1 ( radio, DVD and VCR ) .
24 ) Differentiate advertising abuse of false advertising .
A: The difference is: the false advertising , the effect is to induce the consumer to believe in something that does not correspond to the reality of the product or service itself , or with respect to its price and form of payment , or even the your warranty etc. . The consumer is fooled , takes " pig in a poke " , since the forms of cheating are the most varied , because the supplier uses the visual impact elude pair , for example , phrases to hide , partially true statements to deceive . The inducement to error is in relation to an essential quality of the product or service , p . eg. lying the engine capacity of the car does not constitute false advertising , but the rhetorical exaggeration . Already in abusive advertising is any advertising that discriminates whatsoever ( sex, color, race , religion , etc. . ) , Incites violence , exploits fear or superstition , take advantage of the lack of judgment and experience of children , disrespect environmental values , or that is capable of inducing the consumer to behave harmful or dangerous to their health or safety . Has no direct relationship with the product , but the effects they can produce propaganda , causing harm or embarrassment to the consumer . P. eg. Trade Chocolates Garoto where kids take guns and steal manufactures chocolates . There are certain assumptions that in addition to the propaganda trick , you can also be abusive .
25) The CDC is applied to condominiums ?
A: Not at first , should be analyzed to the case , because there is already case law concerning specific cases .
26 ) The accident within the Shopping Center is implementing the CDC ?
A: It has been applied but the CDC to the accident within the Shopping Center , due to joint objective , which , in consumer relations , there is no need to prove. It should be observed objectively and causation . It is supportive , because they can choose who fully reimburse . Not admitted third part at the CDC , due to speedy trial .
27 ) What is returned in double ?
A: The return double arises when the consumer was charged in undue sum and will have to repeat the magpie , a value equal to or double that paid in excess shall accrue monetary correction and interest legal but does not apply in the case of deception justified (article 42 , sole paragraph of CDC ) .
28 ) What is bundling ?
A: The tying is a means whereby the vendor intends to require the consumer to purchase a product or service just because he was interested in purchasing another product or service ( art. 39 , I, CDC ) . An example often used by banks, to open the bank account of the consumer requires maintaining average balance or to grant loan, requires the making of life insurance , we also have the case of the bar, the waiter only serves the drink or allows the client to continue drinking at the table ordered monitoring to eat . Those deals like "buy 3 and pay 2 are valid as long as the consumer can also purchase just one piece , even if you have to pay more for the product only in the calculation of the offer made .
29 ) What is right to discharge ?
A: The right to discharge is provided to the consumer , the early settlement of debt, total or partial , by proportional reduction of interest and other additions ( art. 52 , § 2 of the CDC ) . Consumers who pay the financing ahead of schedule and will have a proportional reduction in interest and other charges .
30 ) Explain the State law prohibiting " telemarketing " .
A: State law that prohibits telemarketing protects consumers whether fixed-line or mobile no incoming links for these , taken inconvenient and disturbing and should only register via phone or internet number that will be blocked . The exception only companies assisting character of stamp benefit , such as associations.
31 ) What is recall ?
R : Recall (expression stemmed from English ) : it is the duty of the supplier to exchange the product or service that is defective , announcing in advertising the existence of this defect , avoiding greater losses ( Art. 10 , § 1 , of the CDC ) . Through this instrument , the standard protectionist want the supplier to prevent or seek to prevent , albeit belatedly , that the consumer suffers any damage or loss related to addiction that product or service after they have presented their marketing . P. eg. a buffer that left the automaker presented operational problems and come from the same batch arising from its manufacturer , is more likely to repeat the problem in cars already on the market , so that vehicles already sold should be " called back " .
32 ) What is the duty of prominence ?
A: According to art . 54 § 4 , of the CDC , says : " The terms which involve limiting consumer law should be written prominently, allowing their immediate and easy to understand ." So , any restriction of the rights of the consumer should be highlighted , preferably in bold and underlined , and the font size should be 12 letters or greater body . It has been seen as vast opportunities require justice clauses ineffective health plans , behold these adhesion contracts should be obedience to the precept when protectionist consumer does not highlight the limitations in the case of medical and hospital coverage .
33 ) What is strict liability ?
A: As determined jointly arts. 24:14 CDC , every one producer or service provider has strict liability therefore respond regardless of fault , leaving the consumer to repair the damage . Thus , Nelson teaches Nery :
" The standard establishes strict liability as the general system of responsibility of CDC . Thus , the entire compensation derived from consumer relationship , subject to the regime of strict liability , unless the Code expressly provides otherwise. There is strict liability for damages from the supplier to the consumer , regardless of the investigation of guilt . " ( New Civil Code and Legislation extravagant noted. São Paulo : RT , 2002, p. 725 ) .
Can conclude finally that it matters little whether the subjective intent of the agent was therefore in consumer relations , in general , is the important fact of the loss , so there is such, that it caused has the obligation to repair it .
Nunes , Luiz Antônio Rizzatto , Course consumer law , 2011 -6 . ed. - Sao Paulo : Saraiva .
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