The world population is increasingly inserted in a technological context, in which many of the operations and activities previously carried out exclusively in person, are now carried out online.
Following the packaging of these changes and reforms, several cryptoassets (virtual currencies) were created, the most famous of which is Bitcoin, which is already used in various business operations, and it should be noted that, in 2021, the Government of El Salvador approved a law making said currency official in the country, along with the US dollar, and in April 2022, the Central African Republic, in the same sense, also adopted Bitcoin as legal tender alongside the CFA Franc.
In addition to crypto assets, there are several other digital assets that have a financial value. As an example, one cites the air miles, ebooks (digital books) and social networks of digital influencers, with millions of followers, through which it is possible to bill a high daily amount with advertisements.
Another interesting example is the game Counter-Strike: Global Offensive, in which a special look of the AK-47 machine gun – just contextualizing,said game is a shooter – was sold for $400,000,001.
However, it is not always that these digital goods have an economic value. The social media accounts of non-famous people, with few followers, despite containing several photographs and memories – which, of course, have a value to their owner – have no economic value.
in this scenario, a question that is currently asked a lot: what happens to these digital assets when there is the death of its owner?< / strong>
It is up to the law to monitor these developments and try to respond to the problems that arise.
Inheritance Law
Succession law is a complex of legal principles and rules that govern the transfer of a natural person’s assets, whether assets or liabilities, to after death, by virtue of the law or testament.
Oliveira and Amorim (2018, P.37), define that “Succession is the act or effect of succeeding. It has the sense of substitution of persons or things, transmission of rights, charges or goods, in a legal relationship of continuity”.
Within the succession there is the figure of legitimate succession, which refers to the transfer causa mortis granted to persons designated in the legislation as necessary heirs of the author of the inheritance, identified through the so-called Order of hereditary vocation or by specific rules of appointment of successors. It is these individuals who will be called upon to acquire the inheritance, either in the absence of each other or in situations of competition between them.
The Brazilian Civil Code adopts as criteria family ties, consanguineous (biological affiliation) or civil (adoption), and the bond arising from marriage or stable union.
The legitimate succession can comprise the entire hereditary estate, or restrict to the part not understood by the will. The natural person can, during his life, only dispose of the available part of his assets, corresponding to 50% of the total of his patrimony (a percentage that will be earned only when he dies). In the meantime, Maria Berenice Dias teaches (2021, P. 153-154):
The holder of the patrimony cannot freely dispose of all his property, neither during his life, nor for after his death. He can only donate what he can dispose of by Will (CC 549). Thus, even if he is fully capable, the freedom of those who have necessary heirs is not absolute. The law chooses certain persons who will necessarily receive part of the estate: descendants, ascendants and spouse. These are the so-called necessary heirs. Half of the inheritance goes to them. The legitimate succession imposes the transfer of half of the patrimony to whom the law elects as heir. Only the other half is available, and the holder is free to use it at will. He can donate as long as he lives or, by means of a will, he can leave to whom he pleases all the available half, a fraction of it, or certain goods (CCC 1.786). Testamentary heirs receive a share-part of the inheritance, and legatees-identified property.
The figure of The Testament is also about a last manifestation of a person’s will, in which the deceased disposes, for after death, in whole or a part of his assets to third parties.
There are several legal requirements and formalities for drawing up a Will, which must be strictly respected to be considered valid, under penalty of nullity.
The Brazilian Civil Code provides for three ordinary forms of will:
International and Comparative Law
As stated, the issue of digital heritage is not unique to a single country, but rather a global challenge that requires comprehensive and adaptable legal approaches. Around the world, lawmakers and legal experts are seeking ways to deal with the transfer of digital assets after the death of the holder.
In countries such as the United States and some European countries such as the United Kingdom and France, specific legislation has been proposed and in some cases implemented to address digital heritage. These laws aim to clearly define the rights of heirs in relation to digital assets and establish procedures for their proper transfer and Management4.
For example, in the United States, some states have enacted laws that allow users to designate a “digital executor” in their wills to handle their online accounts after death. These executors have the legal authority to access and manage the deceased’s digital accounts according to their instructions.
However, despite advances in some countries, there is still a lack of harmonization and consistency in digital inheritance laws around the world. This can create challenges for individuals and families with digital assets in different jurisdictions.
In addition, in many developing and emerging countries, specific legislation on digital heritage is still in the early stages of development. This can result in legal uncertainty and practical difficulties for heirs when dealing with digital assets in succession cases.
Given this, it is essential that legislators continue to monitor and respond to changes in the digital environment by developing updated and adaptable laws and regulations that protect the rights of individuals and ensure a smooth and fair transition of digital assets after the death of the holder. International cooperation and sharing of best practices are also key to addressing the global challenges presented by digital Heritage.
Conclusion
For all the above reasons, all digital assets of an exclusively patrimonial nature must be transferred to successors after the death of their owner. In the case of non-patrimonial digital assets, these should not be transferred to their relatives at the time of death, with the exception of the express manifestation of the holder while still alive.
However, exceptionally, access to these assets must be possible, when there is a Just Cause, which must be evaluated individually by the judiciary, in order to try, in the best possible way, to reconcile the interests at stake.5
In addition to the legal and procedural issues surrounding digital inheritance, it is important to consider the ethical and human aspects related to digital assets. As mentioned, digital assets can contain not only patrimonial value, but also memories, relationships and personal identity of the deceased. Therefore, when dealing with the transfer and management of these assets, it is critical to ensure that the interests and wishes of the holder are respected. The possibility of access to non-patrimonial digital assets, under exceptional circumstances and upon judicial evaluation, aims to balance the rights of heirs with respect to the privacy and dignity of the deceased, through sensitive access, recognizing not only their financial value, but also their emotional and personal significance for those we leave behind.
1 GUGELMIAN, Philip. Counter-Strike: Global Offensive Skin sells for $ 400k Adrenaline, 2023. Available at: https://www.adrenaline.com.br/games/skin-de-counter-strike-global-offensive-e-vendida-por-us-400-mil/. accessed on: 15 jan. 2024
2 keys, Natalia. Digital heritage in Brazil: legal challenges and perspectives. In: CANSIAN, Adriana; MIELE, Aluísio; CINTRA, Caio; COLOMBO, Cristiano; CABELLA, Daniela; ARAÚJO, Débora; MONTE-SERRAT, DIONÉIA; PIMENTA, Eduardo; CANO, Flávia; JALLAIS, Gabriel; LIMA, Gabriel; FERRARI, Giovanni; FALEIROS JÚNIOR, José Luiz (org.); CAMARGO, Júlia (org.); ROCHA, Lucas; SOUZA, Maique; MATTIUZZO, Marcela; MILAGRES, Marcelo; CHAVES, Natália; LIMA, Pedro Henrique; QUINELATO, Pietra; QUEIROZ, Renata; CALAZA, Tales; HAYASHI, Victor; MARQUES, Vivian; ENGELMANN, Wilson; CARVALHO, CARAVALHO, Anne Isabelle; NOGUEIRA, Michele (org.); PARENTONI, Leonardo (org.). Law, Technology and innovation vol. 5 Internet of Things (IoT). 1. ed. Center for Research In Law, Technology and innovation – Dtibr Center. 2023. p. 337
3 ZAMPIER, Bruno. Digital goods-cyberculture, social networks, emails, music, books, air miles, virtual currencies. 1. ed. Indaiatuba. Editora Foco Jurídico. 2017. pp. 124-125.
4 keys, Natalia. Digital heritage in Brazil: legal challenges and perspectives. In: CANSIAN, Adriana; MIELE, Aluísio; CINTRA, Caio; COLOMBO, Cristiano; CABELLA, Daniela; ARAÚJO, Débora; MONTE-SERRAT, DIONÉIA; PIMENTA, Eduardo; CANO, Flávia; JALLAIS, Gabriel; LIMA, Gabriel; FERRARI, Giovanni; FALEIROS JÚNIOR, José Luiz (org.); CAMARGO, Júlia (org.); ROCHA, Lucas; SOUZA, Maique; MATTIUZZO, Marcela; MILAGRES, Marcelo; CHAVES, Natália; LIMA, Pedro Henrique; QUINELATO, Pietra; QUEIROZ, Renata; CALAZA, Tales; HAYASHI, Victor; MARQUES, Vivian; ENGELMANN, Wilson; CARVALHO, CARAVALHO, Anne Isabelle; NOGUEIRA, Michele (org.); PARENTONI, Leonardo (org.). Law, Technology and innovation vol. 5 Internet of Things (IoT). 1. ed. Center for Research In Law, Technology and innovation – Dtibr Center. 2023.
5 ZAMPIER, Bruno. Digital goods-cyberculture, social networks, emails, music, books, air miles, virtual currencies. 1. ed. Indaiatuba. Editora Foco Jurídico. 2017. Q. 128
OLIVEIRA, Euclides; Amorim, Sebastião. Inventory and sharing: theory and practice. 25. ed. São Paulo: Saraiva Educação, 2018.
DIAS, Maria Berenice. Handbook of successions. 7. ed. rev., current. and ampl. Salvador: Editora JusPodivm, 2021.
CANSIAN, Adriana; MIELE, Aluísio; CINTRA, Caio; COLOMBO, Cristiano; CABELLA, Daniela; ARAÚJO, Débora; MONTE-SERRAT, DIONÉIA; PIMENTA, Eduardo; CANO, Flávia; JALLAIS, Gabriel; LIMA, Gabriel; FERRARI, Giovanni; FALEIROS JÚNIOR, José Luiz (org.); CAMARGO, Júlia (org.); ROCHA, Lucas; SOUZA, Maique; MATTIUZZO, Marcela; MILAGRES, Marcelo; CHAVES, Natália; LIMA, Pedro Henrique; QUINELATO, Pietra; QUEIROZ, Renata; CALAZA, Tales; HAYASHI, Victor; MARQUES, Vivian; ENGELMANN, Wilson; CARVALHO, CARAVALHO, Anne Isabelle; Nogueira, Michele (org.); PARENTONI, Leonardo (org.). Law, Technology and innovation vol. 5 Internet of Things (IoT). 1. ed. Belo Horizonte. Center for Research In Law, Technology and innovation – Dtibr Center. 2023.
ZAMPIER, Bruno. Digital goods-cyberculture, social networks, emails, music, books, air miles, virtual currencies. 1. ed. Indaiatuba. Editora Foco Jurídico. 2017.
Shared custody to the x-Guard Ac
The setting of the care and custody of the children is a major concern for the couples who decide to get a divorce. However, despite the fact that the theme of conversation, of the parents, they should always seek to be in the best interests of the child, in order to ensure that it is the most favorable and convenient for you to your emotional and physical development.
At this point, the study of the methods of the guard, many of the parents are entangled in the relationship of the two species is featured in: the shared custody, and to the left alternately.
Therefore, in this paper we explore the characteristics of, and pointed out the distinctions of the institutes mentioned above.
In the first, and explain to the guard, the toggle is in the distribution in the time in which the child is with each parent. Thus, during these periods, he was transferred to the responsibility, the integral with respect to the child.
For example, the child remains is a week of living with her father, and a week of living with her mother instead. Therefore, each and every one of the parents must take up the post of guardian of the integral of the offspring in their proper slots.
Some legal scholars are critical of this model is that it understands that the development of the child is also affected by the collapse of their routine research. In this sense, Shelley, Mary CARBONERA, it is understood that the “exchange of houses, it would be detrimental to the balance of the child, preventing it from will have the necessary stability to its full development”[1].
On the other hand, other parties involved will understand that, even if the routine is the model of education will be different in each household, the child is able to adapt to the differences in.
On the other hand, the shared custody and is characterized by the sharing of responsibilities, and that it doesn’t take time in the living equally.
In this regard, the Minister in the high Court of Justice Nancy Andrighi, it is understood as follows[2]:
“In fact, in the joint custody requires the sharing of responsibilities, don’t confuse it with the custody and joint physical offspring, or divided into, equal to the time-of-living of the children with their parents.”
The purpose of this model is the fact that the parents are engaged in a custody the same time. As a consequence, both the parents have to make decisions about education, health, and leisure, among other decisions.
In this sense, the scheme is shared, it is possible that it is set in a home for the child in accordance with his best interests.
Also, if it is in the interests of all parties involved, it is possible to be established in the joint custody of with the switch of the housing, in which the responsibilities and decision-making on the lives of the child to continue to be from both parents, even in the periods in which the child is with the other parent.
Finally, it is important to reiterate that, at the time of the award of the custody of the child, in the light of the principle of the protection of children’s education[3], in the best interest of the child should be attended to first. For this reason, it is imperative for the assessment of the evidence in each case, all of which are natural persons, as well as the relationships.
[1]CARBONERA, Shelley, Mary. Guard of the Children in the family, constitucionalizada. Porto Alegre: Sergio Antonio Fabris Editor, 2000.
[2] Joint custody is possible, even if the parents live in different cities, (the supreme court of justice.justice.s)
[3]Art. 227. It is the duty of the family, of society and of the State to protect the child, the adolescent and the young man, with absolute priority, the right to life, to health, to food, to education, leisure, professional training, culture, dignity, respect, freedom and family and community, in addition to putting them safe from all forms of negligence, discrimination, exploitation, violence, cruelty, and oppression. (As amended By Amendment no. 65 of 2010)
Marina Arista Smith. A lawyer with a bachelor degree in Law from the Pontifical Catholic University of são paulo (2020), member of the Order of Attorneys of Brazil, the São Paulo (2022). A post-graduate student in Civil Procedural Law from the Faculty Damasio de Jesus. She is the author of the articles. A lawyer have Associated with it.
The alternatives are Legal for the Resolution of Disputes between the Members, with Equal Participation
Não é raro de se observar desacordos e desalinhamentos entre os sócios de uma sociedade, uma vez que a diversidade de pessoas e personalidades, inevitavelmente, leva a uma variedade de opiniões, o que por sua vez pode resultar em divergências quanto ao próprio funcionamento e desenvolvimento do objeto social da sociedade. Especialmente nas sociedades limitadas, em que o affectio societatis é elemento intrínseco, tais desacordos e desalinhamentos podem ocasionar sérias consequências.
Há de se ressaltar, logo inicialmente, que nem todos os conflitos enfrentados pelos sócios são considerados impasses ou, como denomina a doutrina, “deadlock”. Considera-se “deadlock” apenas os conflitos sobre uma diretriz fundamental para a sociedade.
Esse tipo de conflito não pode ser solucionado por meio de acordo entre as partes, uma vez que não é possível obter o quórum necessário para aprovar uma deliberação de extrema importância para a sociedade, o que se torna ainda mais difícil quando a estrutura societária concede uma participação igualitária aos sócios, como por exemplo, uma sociedade limitada com dois sócios, cada um com participação de 50% (cinquenta por cento).
Quando nos deparamos com esses confrontos, em geral, três são as maneiras de resolvê-los: a autotutela, a autocomposição, e a heterocomposição.
Na autotutela as partes empregarão seus próprios recursos para solucionar o conflito. Já na autocomposição as partes, por meios próprios, resolvem o impasse, sem recorrer à aplicação da força e, por fim, na heterocomposição as partes se utilizarão de um (ou mais) terceiros para decidir a questão por elas.
Existem as formas tradicionais de solucionar os impasses, como a mediação, a arbitragem e o ajuizamento de demandas judiciais (Poder Judiciário), sendo essa última, em que pese todas as suas desvantagens, a mais comumente utilizada.
A mediação
A mediação se mostra um recurso eficaz na resolução de disputas, especialmente quando os sócios possuem igualdade de poder (em que cada sócio possui 50% do capital social). Conforme estabelecido na Lei nº 13.140/2015, um mediador auxilia as partes a forjar uma solução consensual para a questão.
O mediador atua de forma imparcial, desempenhando o papel de facilitador na identificação das reais necessidades e interesses das partes. Ele não oferece sugestões de soluções, mas auxilia na construção da resolução e, mais do que isso, busca, também, restaurar a relação entre os sócios. A confidencialidade da mediação é um aspecto relevante, especialmente em casos que envolvem informações confidenciais.
O procedimento de mediação pode ocorrer em uma câmara escolhida de comum acordo pelas partes ou de maneira mais informal, com a escolha de um mediador acordada entre elas. Aqui, é importante ressaltar a confidencialidade da mediação, especialmente em casos que envolvem informações confidenciais.
A arbitragem
A arbitragem é regulada pela Lei nº 9.307/1996 e consiste em transferir a um arbítrio ou tribunal arbitral a responsabilidade de solucionar uma disputa e, diferentemente da mediação, um terceiro assume a responsabilidade pela decisão final. Esse método oferece benefícios como a previsibilidade dos prazos e a impossibilidade de apelação contra a decisão arbitral.
Ademais, as partes podem optar por um árbitro altamente especializado na matéria da controvérsia e, também, é confidencial, o que reduz a exposição dos envolvidos.
Em que pese ser um método que não envolve o Poder Judiciário, caso a decisão arbitral não seja cumprida, deve-se a ele recorrer. A decisão arbitral é considerada título executivo e pode ser, em caso de inadimplemento, executada através dos mecanismos coercitivos que dispõe o Poder Judiciário.
Poder Judiciário
Ao tratar-se de conflitos tem-se que uma das primeiras – e mais utilizadas – possibilidades de solução é o Poder Judiciário, por meio do qual a decisão cabe ao Estado-Juiz.
A utilização do Poder Judiciário é garantida pelo princípio da inafastabilidade do controle jurisdicional, consagrado no art. 5º, XXXV, da CFB/88[1], porém, diante especialmente de sua morosidade, a utilização do Poder Público pode não ser a alternativa mais eficaz.
Além dos métodos tradicionais, antes mencionados, existem alternativas contratuais para solucionar os impasses entre os sócios, as chamadas “cláusulas de impasse”, mais comumente conhecidas como “deadlock provisions”. São mecanismos para solucionar possíveis impasses e conflitos entre os sócios e a essência dessas cláusulas reside em seu caráter contratual, sendo que apenas são acionadas se as partes envolvidas optarem por incluí-las no contrato ou estatuto social. Não são impostas por regulamentação legal, mas derivam da livre vontade das partes contratantes.
Neste contexto, o princípio jurídico do “pacta sunt servanda” assume importância fundamental. Ele estipula que o que as partes acordaram deve ser cumprido, desde que não viole as leis ou o sistema jurídico vigente. Em outras palavras, as partes têm a liberdade de estabelecer regras e procedimentos para lidar com impasses e conflitos, contanto que essas disposições estejam em conformidade com as leis existentes.
As cláusulas de impasse podem assumir uma variedade ampla de formas e procedimentos, geralmente sendo adaptadas para atender às necessidades e características específicas de cada sociedade e das partes envolvidas. Alguns exemplos de disposições de impasse são:
Cláusulas escalonadas
As cláusulas chamadas de cláusulas escalonadas, também conhecidas como cláusulas “med-arb”, estipulam a resolução de conflitos inicialmente por meio de um processo autocompositivo, como a mediação. Caso as partes não alcancem um acordo consensual, têm a opção de submeter a controvérsia a um terceiro, seja um árbitro ou o sistema judiciário, que decidirá o caso de maneira final, substituindo-as.
Voto de Qualidade
Prevê a atribuição a um membro do conselho de administração ou da assembleia de sócios com um “voto de qualidade”, que geralmente é designado ao presidente (que pode ser um membro independente ou um cargo rotativo entre os próprios sócios, com o intuito de assegurar imparcialidade e equidade nas decisões) do conselho e/ou assembleia e torna-se decisivo na situação de empate ou desacordo entre os sócios
Essa função crucial possibilita a resolução imediata de situações em que as partes não conseguem alcançar um consenso, impedindo assim a paralisação das operações e garantindo que as decisões continuem a ser tomadas de maneira ininterrupta.
Cláusula Shotgun
Cláusulas Shotgun referem-se àquelas que estipulam que, ao se constatar um “gatilho” (como a ocorrência de um impasse societário), uma das partes tem o direito de adquirir a participação societária da outra parte. Esta última é obrigada a vender suas ações ou quotas para a parte ofertante, ou então comprar as ações ou quotas desta.
Ao retirar um dos sócios, o conflito de interesses, que se caracteriza pela pretensão resistida, é resolvido de maneira direta e eficaz. Isso porque nos casos em que a resolução amigável é inviável e o impasse societário é tão significativo a ponto de ameaçar a continuidade da sociedade e de suas operações, a saída de um dos sócios pode ser a solução mais eficiente e rápida.
Como a parte que aciona a cláusula pode eventualmente comprar ou vender a participação societária, há um incentivo para que se estabeleça um preço justo pelas ações ou quotas – o que promove resultados mais equitativos, sem os custos administrativos e a demora associados a outros métodos de resolução de conflitos societários.
Assim, a Cláusula Shotgun, em regra, possui o seguinte funcionamento:
1) Notificação: com a configuração do impasse, uma das partes envia uma notificação à outra para adquirir ou vender sua participação por um valor determinado. A parte que notificante apresenta as condições que considera viáveis para a concretização do acordo, concedendo um prazo para que a parte notificada decida se irá comprar a participação da notificante ou vender a sua, conforme as condições propostas; e
2) Resposta à Notificação: Por sua vez, a parte notificante terá a prerrogativa de escolher se deseja se retirar da sociedade, vendendo sua participação à parte ofertante, ou se prefere permanecer, adquirindo a participação da parte notificante.
É crucial que o acordo de sócios contemple a interpretação do silêncio por parte da notificada, bem como outras condições da notificação, como o prazo para resposta, o método de pagamento e a determinação do critério para a apuração de haveres, entre outras que as partes julguem pertinentes, levando em conta a natureza específica da relação entre elas.
Sabrina de Melo – Advogada do Departamento Consultivo no TM Associados, graduada em Direito pela Universidade Padre Anchieta (2022), inscrita na Ordem dos Advogados do Brasil, Secção de São Paulo (OAB/SP). Pós-Graduanda em Direito Civil pela PUC-MG.
Leonardo Theon de Moraes – Advogado, graduado em direito, com ênfase em direito empresarial, pela Universidade Presbiteriana Mackenzie (2012), inscrito na Ordem dos Advogados do Brasil, Seção São Paulo (OAB/SP) (2012). Pós- graduado e Especialista em Direito Empresarial pela Escola de Direito de São Paulo da Fundação Getúlio Vargas (2014), Mestre em Direito Político e Econômico pela Universidade Presbiteriana Mackenzie (2017), autor de livros e artigos, palestrante, professor na graduação, MBA e Educação Executiva na FIPECAFI, membro da Associação dos Advogados de São Paulo (AASP), membro do Comitê de Direito Empresarial e de Fusões e Aquisições da International Bar Association, Membro da Associação dos Advogados de São Paulo (AASP) e Presidente do Conselho Estadual de Assuntos de Direito Comercial da FEDERAMINAS. Sócio fundador da TM Associados. Sócio fundador do TM Associados.
[1] “A lei não excluirá da apreciação do Poder Judiciário lesão ou ameaça a direito”
The Use of Screen Shots as Evidence in the proceedings
Atualmente as redes sociais em geral e, principalmente, o WhatsApp fazem parte do dia a dia da maioria dos brasileiros, sendo que a qualquer momento podemos tirar uma captura de tela (“print”) e guardar qualquer informação.
A utilização tão frequente dos meios de comunicação online e imediatos, trouxe a possibilidade de produção de provas através dos aplicativos de comunicação, como por exemplo, provas da ocorrência de um golpe em compra de mercadoria, descumprimento de acordos realizados informalmente, ocorrência de danos materiais ou morais e, até mesmo, confissões de práticas ilícitas.
O Código de Processo Civil, vigente no Brasil, traz em seu artigo 369 a disposição acerca da produção de provas processuais:
“Art. 369. As partes têm o direito de empregar todos os meios legais, bem como os moralmente legítimos, ainda que não especificados neste Código, para provar a verdade dos fatos em que se funda o pedido ou a defesa e influir eficazmente na convicção do juiz.”
Ou seja, as partes de um processo podem provar o que alegam da forma que quiserem, desde que dentro da lei. Neste passo, seria possível deduzir que a produção de prova através de “print” de WhatsApp é válida na esfera judicial.
Contudo, em decisão recente, a 6ª Turma do Superior Tribunal de Justiça entendeu pela invalidade de prova obtida por “print” de WhatsApp, tendo em vista que o aplicativo disponibiliza ferramentas capazes de alterar a verdade dos fatos, como, por exemplo, a oportunidade de apagar ou, até mesmo, editar uma mensagem já enviada, vejamos:
“Esta Sexta Turma entende que é invalida a prova obtida pelo WhatsApp Web, pois “é possível, com total liberdade, o envio de novas mensagens e a exclusão de mensagens antigas (registradas antes do emparelhamento) ou recentes (registradas após), tenham elas sido enviadas pelo usuário, tenham elas sido recebidas de algum contato. Eventual exclusão de mensagem enviada (na opção “Apagar somente para Mim”) ou de mensagem recebida (em qualquer caso) não deixa absolutamente nenhum vestígio, seja no aplicativo, seja no computador emparelhado, e, por conseguinte, não pode jamais ser recuperada para efeitos de prova em processo penal, tendo em vista que a própria empresa disponibilizadora do serviço, em razão da tecnologia de encriptação ponta a ponta, não armazena em nenhum servidor o conteúdo das conversas dos usuários” (RHC 99.735/SC, Rel. Ministra LAURITA VAZ, SEXTA TURMA, julgado em 27/11/2018, DJe 12/12/2018). 4. Agravo regimental parcialmente provido, para declarar nulas as mensagens obtidas por meio do print screen da tela da ferramenta WhatsApp Web, determinando-se o desentranhamento delas dos autos, mantendo-se as demais provas produzidas após as diligências prévias da polícia realizadas em razão da notícia anônima dos crimes.” (STJ – AgRg no RHC: 133430 PE 2020/0217582-8, Relator: Ministro NEFI CORDEIRO, Data de Julgamento: 23/02/2021, T6 – SEXTA TURMA, Data de Publicação: DJe 26/02/2021).
Apesar de a decisão ter sido prolatada em processo criminal, o entendimento vem sendo utilizado pelos Magistrados das varas cíveis para invalidar provas obtidas através de “print” de WhatsApp:
“Para a configuração da ilegitimidade ativa na Ação de Execução de Título Extrajudicial, é necessária a prova inequívoca de que o exequente não é o credor de direito – Em recente julgado do STJ (AgRg no RHC 133.430), foi firmado entendimento de que meros prints de tela de WhatsApp não se prestam como meio de prova – Tendo sido o contrato, utilizado como título exequendo, firmado entre as partes que compõem a lide, não há que se falar em ilegitimidade ativa -Nos termos do art. 784, do CPC, é título executivo extrajudicial, dentre outros, “o documento particular assinado pelo devedor e por 2 (duas) testemunhas” – O Superior Tribunal de Justiça vem formando entendimento de que nos casos em que houver comprovação do negócio jurídico firmado entre as partes por meios idôneos, como a confirmação da realização da avença pelas partes, o requisito de duas testemunhas assinando o contrato é mitigável no que se refere à formação do título exequendo ( AgInt no REsp 1.870.540/MT) – Nos termos do art. 360, I, do CC/2002, a novação ocorre “quando o devedor contrai com o credor nova dívida para extinguir e substituir a anterior”. Assim, não havendo comprovação de que as notas promissórias alegadamente emitidas pelo embargante se prestaram a novação da dívida com o exequente, não deve haver reconhecimento da existência de novação.”
(TJ-MG – AC: 10074170061910001 Bom Despacho, Relator: José Eustáquio Lucas Pereira, Data de Julgamento: 28/09/2021, Câmaras Cíveis / 18ª CÂMARA CÍVEL, Data de Publicação: 28/09/2021).
Ainda, além da utilização do entendimento do STJ, os Tribunais vêm expondo seus próprios entendimentos acerca do tema:
“Ação de indenização. Dano moral. Recebimento de mensagem por aplicativo. Ausência de prova da origem das mensagens. Prints juntados desacompanhado de ata notarial. Aplicação do artigo 384 do CPC. Alegação de ato indevido praticado por preposto da ré quando da aplicação de injeção. Ausência de provas sobre o alegado. Improcedência da ação. Recurso da autora improvido.”
(TJ-SP – AC: 10001535320188260012 SP 1000153-53.2018.8.26.0012, Relator: Ruy Coppola, Data de Julgamento: 27/11/2019, 32ª Câmara de Direito Privado, Data de Publicação: 27/11/2019).
“Apelação cível. Consórcio. Promessa de contemplação. Não comprovação. Conversas por aplicativos de mensagem eletrônica. Whatsapp. Único meio de prova. Impossibilidade. Responsabilidade afastada. Recurso provido. A utilização de prints de mensagens eletrônicas pelo aplicativo Whatsapp não pode ser admitida como único meio de prova, dada a possibilidade de edição da conversa, mediante a possibilidade de exclusão de mensagens, sem que possa ser recuperada para fins de realização de perícia. Não demonstrada a prova de que a parte autora foi induzida em erro, quando da assinatura do contrato de participação ao grupo de consórcio ou que houve promessa de contemplação, é impossível a responsabilização civil por danos materiais e morais.”
(TJ-RO – AC:70336341220198220001 RO 7033634-12.2019.822.0001, Data de Julgamento: 30/09/2021).
Analisando o entendimento das Cortes, devemos nos munir de todos os tipos de provas possíveis, sendo que, o ideal é que o fato alegado possa ser comprovado através de diversos meios de prova como um contrato formal assinado, troca de e-mails ou, até mesmo, prova testemunhal.
Caso existam apenas provas produzidas através de conversa de WhatsApp, a orientação seria a elaboração de Ata Notarial em Cartório assinada pelo Tabelião, visto que este tem fé pública e irá dar validade às conversas realizadas através dos meios de comunicação online[Ld1] .
Ainda, existem novas ferramentas digitais, como os sites https://www.verifact.com.br/ e https://originalmy.com/, que realizam a validação de prints de conversas de WhatsApp de maneira simples e mais econômica.
Os Tribunais estão cada dia mais abertos a utilização de sites e programas de inteligência artificial, o que pode facilitar a continuidade da utilização de prints como documento probatório em eventual demanda judicial, portanto, sempre procure orientação jurídica para dar validade aos prints antes de incluí-los em um processo.
Giovanna Pedroni Collini
Advogada, graduada em direito pelo Centro Universitário Padre Anchieta (2022), Pós-graduanda em Direito Processual Civil pela PUC-MG, Inscrita na Ordem dos Advogados do Brasil, Secção São Paulo (OAB/SP) (2022). Advogada do Departamento Contencioso e Trabalhista no TM Associados.
Business law and the updating of the Code of Civil
On September/23, at the initiative of the president of the Federal Senate, Rodrigo Pacheco, the Commission of Jurists responsible for reviewing and updating the Civil Code was created, chaired by the minister of the STJ, Luis Felipe Salomão.
The Commission of Jurists concluded on 4/5/241 the analysis of the final report, which was presented to the plenary of the Federal Senate on 4/17/242. From now on, the Senators will analyze the proposal sent by the committee of Jurists, which will be filed as a bill by the president of the Federal Senate.
To update the aspects involving Business Law, the subcommittee on Business Law was established, which sought to promote adjustments in the discipline and interpretation of business, with reinforcement of private autonomy, taking into account aspects that are typical of these businesses, seeking legal certainty and greater predictability, adopting the theses that are consolidated by the STJ to settle understandings of the Superior Court.
Among the suggestions for innovations and updates proposed in the final report3, it is worth mentioning the creation of an article that brings principles of business law, inserted in Article 966 – A, which thus provides:
In the same vein, specific rules for business contracts were created, in addition to their own rules of interpretation, in harmony with the principles transcribed above, as provided for in Article 421-C:
“Art. 421-C. civil and business contracts are presumed to be equal and symmetrical, if there are no concrete elements that justify the removal of this presumption, and are thus interpreted by the rules of this code, subject to the legal regimes provided for in special laws.
Sole paragraph. For their interpretation, enterprise contracts require the following additional parameters of consideration and analysis:
As noted, there is a clear intention to reinforce, through Express and specific foresight, the need to respect the principle of private autonomy in business relations, which consists of the power recognized by the legal order to individuals to dispose of their interests, especially economic ones (negotiating autonomy), freely conducting legal business and determining the respective effects (PRATA, Ana. Constitutional protection of private autonomy. Coimbra: Almedina, 1982, p.11)4.
Private autonomy, although modernly it has given way to other principles (such as good faith and the social function of the contract), is still presented as the cornerstone of the system of private law, especially in terms of Business Law.
Its immediate presupposition is freedom as a juridical value. Mediately, ethical personalism also appears as a foundation, with the conception that the individual is the center of the legal system and that his will, freely expressed, must be protected as an instrument for achieving justice (AMARAL NETO, op.cit. p. 17).
The principle is embodied, fundamentally, in contract law, through a threefold dimension: contractual freedom, the binding force of pacts and the relativity of contracts.
Contractual freedom represents the power given to the parties to choose the business to be concluded, with whom to contract and the content of the contractual clauses. It is the wide range of autonomy granted by the legal system to the manifestation of the will of the contractors.
On the other hand, the binding force of contracts is the counterpoint of contractual freedom. If the agent is free to carry out any legal business within civil life, he must be responsible for the acts carried out, since contracts are concluded to be fulfilled (pacta sunt servanda).
Judicial control over clauses in business contracts is more restricted than in other sectors of private law, since negotiations are initiated between professionals in the business area, observing rules usually followed by members of this sector of the economy.
This is the consolidated understanding that has been adopted repeatedly by the state courts and by the STJ, which is also a consensus in the doctrine on the subject, so it is commendable the intention of the committee of Jurists to reinforce such points, through the express provision of these issues in the Civil Code, in order to achieve greater security and predictability in business relations.
Finally, just for information, the draft amendment to the Civil Code also changed the regulations of foreign companies operating on national soil, requiring them to have headquarters and legal representative in Brazil for their regular operation.
The State Council of Commercial Law of FEDERAMINAS will continue to monitor the legislative process involving the reform of the Civil Code, with regard to Business Law, in order to keep the commercial and Business Associations of the state of Minas Gerais informed and updated on the subject.
1 available in: https://www12.senado.leg.br/noticias/audios/2024/04/comissao-de-juristas-para-revisao-do-codigo-civil-conclui-relatorio-final
2 https://www12.senado.leg.br/noticias/audios/2024/04/anteprojeto-do-novo-codigo-civil-e-apresentado-em-plenario
3 https://legis.senado.leg.br/comissoes/comissao?codcol=2630
4 AgInt nos EDcl no REsp n.1.902.149/DF, rapporteur Minister Paulo de Tarso Sanseverino, Third Class, judged on 3/4/2023, DJe of 27/4/2023.
Heritage in the digital world
The world population is increasingly inserted in a technological context, in which many of the operations and activities previously carried out exclusively in person, are now carried out online.
Following the packaging of these changes and reforms, several cryptoassets (virtual currencies) were created, the most famous of which is Bitcoin, which is already used in various business operations, and it should be noted that, in 2021, the Government of El Salvador approved a law making said currency official in the country, along with the US dollar, and in April 2022, the Central African Republic, in the same sense, also adopted Bitcoin as legal tender alongside the CFA Franc.
In addition to crypto assets, there are several other digital assets that have a financial value. As an example, one cites the air miles, ebooks (digital books) and social networks of digital influencers, with millions of followers, through which it is possible to bill a high daily amount with advertisements.
Another interesting example is the game Counter-Strike: Global Offensive, in which a special look of the AK-47 machine gun – just contextualizing,said game is a shooter – was sold for $400,000,001.
However, it is not always that these digital goods have an economic value. The social media accounts of non-famous people, with few followers, despite containing several photographs and memories – which, of course, have a value to their owner – have no economic value.
in this scenario, a question that is currently asked a lot: what happens to these digital assets when there is the death of its owner?< / strong>
It is up to the law to monitor these developments and try to respond to the problems that arise.
Inheritance Law
Succession law is a complex of legal principles and rules that govern the transfer of a natural person’s assets, whether assets or liabilities, to after death, by virtue of the law or testament.
Oliveira and Amorim (2018, P.37), define that “Succession is the act or effect of succeeding. It has the sense of substitution of persons or things, transmission of rights, charges or goods, in a legal relationship of continuity”.
Within the succession there is the figure of legitimate succession, which refers to the transfer causa mortis granted to persons designated in the legislation as necessary heirs of the author of the inheritance, identified through the so-called Order of hereditary vocation or by specific rules of appointment of successors. It is these individuals who will be called upon to acquire the inheritance, either in the absence of each other or in situations of competition between them.
The Brazilian Civil Code adopts as criteria family ties, consanguineous (biological affiliation) or civil (adoption), and the bond arising from marriage or stable union.
The legitimate succession can comprise the entire hereditary estate, or restrict to the part not understood by the will. The natural person can, during his life, only dispose of the available part of his assets, corresponding to 50% of the total of his patrimony (a percentage that will be earned only when he dies). In the meantime, Maria Berenice Dias teaches (2021, P. 153-154):
The holder of the patrimony cannot freely dispose of all his property, neither during his life, nor for after his death. He can only donate what he can dispose of by Will (CC 549). Thus, even if he is fully capable, the freedom of those who have necessary heirs is not absolute. The law chooses certain persons who will necessarily receive part of the estate: descendants, ascendants and spouse. These are the so-called necessary heirs. Half of the inheritance goes to them. The legitimate succession imposes the transfer of half of the patrimony to whom the law elects as heir. Only the other half is available, and the holder is free to use it at will. He can donate as long as he lives or, by means of a will, he can leave to whom he pleases all the available half, a fraction of it, or certain goods (CCC 1.786). Testamentary heirs receive a share-part of the inheritance, and legatees-identified property.
The figure of The Testament is also about a last manifestation of a person’s will, in which the deceased disposes, for after death, in whole or a part of his assets to third parties.
There are several legal requirements and formalities for drawing up a Will, which must be strictly respected to be considered valid, under penalty of nullity.
The Brazilian Civil Code provides for three ordinary forms of will:
International and Comparative Law
As stated, the issue of digital heritage is not unique to a single country, but rather a global challenge that requires comprehensive and adaptable legal approaches. Around the world, lawmakers and legal experts are seeking ways to deal with the transfer of digital assets after the death of the holder.
In countries such as the United States and some European countries such as the United Kingdom and France, specific legislation has been proposed and in some cases implemented to address digital heritage. These laws aim to clearly define the rights of heirs in relation to digital assets and establish procedures for their proper transfer and Management4.
For example, in the United States, some states have enacted laws that allow users to designate a “digital executor” in their wills to handle their online accounts after death. These executors have the legal authority to access and manage the deceased’s digital accounts according to their instructions.
However, despite advances in some countries, there is still a lack of harmonization and consistency in digital inheritance laws around the world. This can create challenges for individuals and families with digital assets in different jurisdictions.
In addition, in many developing and emerging countries, specific legislation on digital heritage is still in the early stages of development. This can result in legal uncertainty and practical difficulties for heirs when dealing with digital assets in succession cases.
Given this, it is essential that legislators continue to monitor and respond to changes in the digital environment by developing updated and adaptable laws and regulations that protect the rights of individuals and ensure a smooth and fair transition of digital assets after the death of the holder. International cooperation and sharing of best practices are also key to addressing the global challenges presented by digital Heritage.
Conclusion
For all the above reasons, all digital assets of an exclusively patrimonial nature must be transferred to successors after the death of their owner. In the case of non-patrimonial digital assets, these should not be transferred to their relatives at the time of death, with the exception of the express manifestation of the holder while still alive.
However, exceptionally, access to these assets must be possible, when there is a Just Cause, which must be evaluated individually by the judiciary, in order to try, in the best possible way, to reconcile the interests at stake.5
In addition to the legal and procedural issues surrounding digital inheritance, it is important to consider the ethical and human aspects related to digital assets. As mentioned, digital assets can contain not only patrimonial value, but also memories, relationships and personal identity of the deceased. Therefore, when dealing with the transfer and management of these assets, it is critical to ensure that the interests and wishes of the holder are respected. The possibility of access to non-patrimonial digital assets, under exceptional circumstances and upon judicial evaluation, aims to balance the rights of heirs with respect to the privacy and dignity of the deceased, through sensitive access, recognizing not only their financial value, but also their emotional and personal significance for those we leave behind.
1 GUGELMIAN, Philip. Counter-Strike: Global Offensive Skin sells for $ 400k Adrenaline, 2023. Available at: https://www.adrenaline.com.br/games/skin-de-counter-strike-global-offensive-e-vendida-por-us-400-mil/. accessed on: 15 jan. 2024
2 keys, Natalia. Digital heritage in Brazil: legal challenges and perspectives. In: CANSIAN, Adriana; MIELE, Aluísio; CINTRA, Caio; COLOMBO, Cristiano; CABELLA, Daniela; ARAÚJO, Débora; MONTE-SERRAT, DIONÉIA; PIMENTA, Eduardo; CANO, Flávia; JALLAIS, Gabriel; LIMA, Gabriel; FERRARI, Giovanni; FALEIROS JÚNIOR, José Luiz (org.); CAMARGO, Júlia (org.); ROCHA, Lucas; SOUZA, Maique; MATTIUZZO, Marcela; MILAGRES, Marcelo; CHAVES, Natália; LIMA, Pedro Henrique; QUINELATO, Pietra; QUEIROZ, Renata; CALAZA, Tales; HAYASHI, Victor; MARQUES, Vivian; ENGELMANN, Wilson; CARVALHO, CARAVALHO, Anne Isabelle; NOGUEIRA, Michele (org.); PARENTONI, Leonardo (org.). Law, Technology and innovation vol. 5 Internet of Things (IoT). 1. ed. Center for Research In Law, Technology and innovation – Dtibr Center. 2023. p. 337
3 ZAMPIER, Bruno. Digital goods-cyberculture, social networks, emails, music, books, air miles, virtual currencies. 1. ed. Indaiatuba. Editora Foco Jurídico. 2017. pp. 124-125.
4 keys, Natalia. Digital heritage in Brazil: legal challenges and perspectives. In: CANSIAN, Adriana; MIELE, Aluísio; CINTRA, Caio; COLOMBO, Cristiano; CABELLA, Daniela; ARAÚJO, Débora; MONTE-SERRAT, DIONÉIA; PIMENTA, Eduardo; CANO, Flávia; JALLAIS, Gabriel; LIMA, Gabriel; FERRARI, Giovanni; FALEIROS JÚNIOR, José Luiz (org.); CAMARGO, Júlia (org.); ROCHA, Lucas; SOUZA, Maique; MATTIUZZO, Marcela; MILAGRES, Marcelo; CHAVES, Natália; LIMA, Pedro Henrique; QUINELATO, Pietra; QUEIROZ, Renata; CALAZA, Tales; HAYASHI, Victor; MARQUES, Vivian; ENGELMANN, Wilson; CARVALHO, CARAVALHO, Anne Isabelle; NOGUEIRA, Michele (org.); PARENTONI, Leonardo (org.). Law, Technology and innovation vol. 5 Internet of Things (IoT). 1. ed. Center for Research In Law, Technology and innovation – Dtibr Center. 2023.
5 ZAMPIER, Bruno. Digital goods-cyberculture, social networks, emails, music, books, air miles, virtual currencies. 1. ed. Indaiatuba. Editora Foco Jurídico. 2017. Q. 128
OLIVEIRA, Euclides; Amorim, Sebastião. Inventory and sharing: theory and practice. 25. ed. São Paulo: Saraiva Educação, 2018.
DIAS, Maria Berenice. Handbook of successions. 7. ed. rev., current. and ampl. Salvador: Editora JusPodivm, 2021.
CANSIAN, Adriana; MIELE, Aluísio; CINTRA, Caio; COLOMBO, Cristiano; CABELLA, Daniela; ARAÚJO, Débora; MONTE-SERRAT, DIONÉIA; PIMENTA, Eduardo; CANO, Flávia; JALLAIS, Gabriel; LIMA, Gabriel; FERRARI, Giovanni; FALEIROS JÚNIOR, José Luiz (org.); CAMARGO, Júlia (org.); ROCHA, Lucas; SOUZA, Maique; MATTIUZZO, Marcela; MILAGRES, Marcelo; CHAVES, Natália; LIMA, Pedro Henrique; QUINELATO, Pietra; QUEIROZ, Renata; CALAZA, Tales; HAYASHI, Victor; MARQUES, Vivian; ENGELMANN, Wilson; CARVALHO, CARAVALHO, Anne Isabelle; Nogueira, Michele (org.); PARENTONI, Leonardo (org.). Law, Technology and innovation vol. 5 Internet of Things (IoT). 1. ed. Belo Horizonte. Center for Research In Law, Technology and innovation – Dtibr Center. 2023.
ZAMPIER, Bruno. Digital goods-cyberculture, social networks, emails, music, books, air miles, virtual currencies. 1. ed. Indaiatuba. Editora Foco Jurídico. 2017.
DET e DJE: Features, and awards – a Guide for employers and principals
Recently, new tools have been implemented in order to change the receive mode, and the science citation and notification issued by the Ministry of Labour, and by the Brazilian Judiciary system. In this article, we explore the main features of these tools and the necessary details – Home Electronics with Labour and the DJE – Home-Judicial E -highlighting their differences, features, and enforcement.
What is the DETAIL?
The GI system is a system of Government, that is managed by a SIT – Department of Labour Inspection, which is part of the MINISTRY of labor and employment, Ministry of Labour and Employment. This system was established in order to cater to the art. 628-The CLT, which provides electronic communication between the Audit and Tax Work, and employers.
The goal of the necessary details for you: * to Increase the transparency and efficiency, and the relationship between the government and the employers. The DETAIL makes it easier to digital communications between the Auditors and the employer, ensuring the highest security and transparency of the information passed as well as reduce the duration of the process (es) and operating costs.
Who should use it in the DETAIL? The use of the necessary details it is mandatory for all employers, irrespective of whether they are employees, including employers ‘ home. It is essential that all employers (individuals and legal entities despersonificados, among other things) to keep your records updated in the DETAIL, as the guidelines are available in the Manual of the DET1.
To access the DETAIL: in THE platform of the necessary details and can be accessed from any operating system can connect to the Internet, and by means of authenticating via login to the account of government.br, or by means of a Digital Certificate. Notifications will be sent to you by e-mail to the contacts that are registered with, and informs them about the existence of the additional information in the Box that the post office DETAIL. However, the science officer of the employer, it only occurs with the message you directly on the platform, and it is not the e-mail address.
Time limits and penalties for the use of the DET
The deadline for the reading of e-mails: it Is crucial for employers to be mindful of the time limit for the reading of the messages that are received in the DETAIL. The notifications have not been read within 15 (fifteen) days shall be considered to be received fully. In some cases, this period may be lower than that specified in the notice you received.
The penalties for non-compliance: non-compliance with the obligations of the DETAIL may result in fines ranging from$ 208,09 R$ 2.080,91, depending on the severity of the infraction.
DJE: Focus on the communications, legal
The DJE is a digital platform that is created for you to centralize the communication of process, summons and subpoenas for the persons, legal entities and private individuals. The DJE, which unifies the communication methods have previously been used, providing a centralized solution for the communication process.
Platform for the Communication Process: Designed to meet the needs of the society and of the courts of this platform to centralize all your communications with procedural and electronic courts in a one of a kind.
Registration on the DJE: register at DJE is mandatory for organizations such as the Union, the states, the Federal District and the municipalities, institutions of direct administration, public and private companies, medium-sized and large-sized businesses. For the micro, small and mid-sized businesses, the survey is optional and, so long as they have the email address registered in your system’s Redesim, as well as for private individuals. Details are on the registration form is available in the Manual of the DJE1.
Best practices for the use of the GI and the DJE
In order to ensure compliance with the law and avoid penalties, companies should adhere to best practices, such as:
The registration is correct, please make Sure that the registered e-mail address to be accessed on a regular basis by more than one person.
Daily check: Go to the platforms in DETAIL, and DJE every day to see the new communications, and avoiding to lose time limits are important.
The organization of the flow of a work: to Establish a clear workflow to manage the the notifications and communications received by such platforms.
Conclusion
The implementation of the necessary details and DJE represents a significant step forward in the modernization of the communication between the Public Administration, the Judiciary, and the employer, in promoting greater efficiency, transparency and security for the fulfilment of legal obligations. To keep up-to-date and compliant with the these platforms, it is essential to avoid any penalties and to ensure the management of the legal function efficiently.
1, Available at: https://det.sit.trabalho.gov.br/manual/
2, Available at: https://www.cnj.jus.br/wp-content/uploads/2023/12/manual-do-usuario-domicilio-judicial-eletronico-ed2.pdf.
Industrial property: the Guardian of the innovation and uniqueness
Introduction
Intellectual property plays an important role in the protection and enhancement of innovation and creation for business. Shall be governed by the law 9.279/96, for this area includes trademarks, inventions, utility models and industrial designs, ensuring the exclusive right to use it. Get to understand their ways, it is essential to maintain a competitive position in the market.
The basics of the intellectual property
These rights are essential in order to differentiate products and services in the market. Registration with the INPI (National Institute of industrial property, it is essential to ensure the legal protection and exclusive rights. The process begins with the submission of specific documents and compliance with the technical requirements that ensure the validity of the rights over the intangible. You have registered with the INPI is the most important step to secure and defend intellectual property rights.
The law 9.279/96 brings together all of the intangible property subject to registration by the INPI and the consequent right to the exclusive use of, and they are: Bullet; Inventions; utility patents; Industrial Designs.
The brand name is regarded as a sign affixed to a product, a commodity, or an indication of a service designed to help you distinguish it from others. Thus, the brand name is what identifies and distinguishes a product or service in the market, so the main requirement to be registered with the INPI it’s the distinctive and, therefore, to introduce a new addition compared to the market for the specified class in which it is located.
After the registration, the proprietor of a trade mark shall have exclusive use for up to 10 years (may be extended over the national territory and, as a rule, in their field of expertise.
Already, in the invention, it is the intangible outcome of the activity, dealing with the industrial application. In the invention, it is protected through the patent system, which ensures that the owner of the exclusive basis for up to 20 years.
Therefore, the utility model is a kind of refinement of the invention, that is, it is an element, the aggregate of the invention, and it requires a new, industrial applications, and in the act of invention. The utility model are also protected by the patent system, and warrants to the owner of the exclusive than 15 years of age.
In the end, the industrial design is a original and new for the specific product in order to make it unmistakable to the public consumer. To be able to be registered with the INPI must be a new creation of the original, which is not present on the original shape of the object, and is capable of processing. The registration of an industrial design ensures the exclusivity of 10 years (which can be renewed up to three times per 5 years).
Warranty is exclusive, and legal action
The holder of the intellectual property will only acquire the right to the exclusive use of the issue of a certificate of registration by the INPI. For this reason, companies that want to ensure the exclusive use of its trademarks, and inventions ‘ they should seek legal advice in an efficient, that you can consider and the need for the record in BRAZIL, in order to maintain their reputation in the market, and your valuable customers.
In addition, the law 9.279/96, also deals with the important aspects of industrial property rights, such as the rules on penalties applicable in cases of infringement of the protection against unfair competition. Among the penalties that are in the seizure of the goods and the payment of compensation to the owner is injured. In addition to this, the law suggests that the measures of protection against the misuse of geographical indications, and trade dress. Companies that want to ensure the integrity of your identity, visual, and territorial must adhere to the regulations and to consider the follow-up expert, to avoid legal disputes and to ensure the defence of the full rights of the intellectual property.
The challenges and tendencies in the industrial property office
Today, enterprises face significant challenges in protecting their intellectual property rights as a result of globalisation, and the increasing digitalization. With the proliferation of online platforms has facilitated the infringement of trade marks and patents, requiring constant monitoring and preventive measures to be effective. In addition to this, the increase in international competition intensifies, the need for strategies that are robust to advocate change. The current trends which include the use of advanced technologies such as artificial intelligence, artificial intelligence, and blockchain, to enhance the safety and the tracing of their rights. To align with international standards and is in the process of adapting to new market dynamics are essential in order to protect the safety and effectiveness of the protection of industrial property.
Some of the meanings of the courts
The sight of the important role played by the industrial property office of the Courts has already entered into some of the relevant views on the subject.
It is worth mentioning the understanding entered into by the supreme court for the compensation for damage to property, and compensation for damages to the off-balance sheet items, in the event of notice of the breach of the trade mark, there is no clear evidence of loss of material and moral, arising out of your use or misuse (One 1804035/DF, rel. ministra NANCY ANDRIGHI, 3rd class, and was published in 28/6/19).
In the framework of the high court of justice, the Court has to be reinforced in a number of decisions, on the principle of speciality, provided for in section XIX of the art. 124 of the law 9.279/96, which provides for the possibility of co-existence of trademarks that are similar or related, since they are not likely to cause the association of misuse or confusion on the market for consumer-to-consumer’S – AgInt in One 1663455 SP 2017/0048618-9, rapporteur: ministro Luis Felipe Salomão, 4th class, and was published in 25/11/21).
As for the Courts of the State, is a relevant example is the ruling of the ECJ, state of minas gerais, which determined that the protection of the brand is usually the case for trade dress (set of-visual-global is a product that gives you the visual identity, with the distinctive characteristics) of the companies (BK, MG – CA, 10000205796139001 MG), rapporteur: mr Arnaldo antunes Maciel, Town, Civil / 18-Civil Chamber, which was published in 23/2/21). Thus, in a general way, for the protection of trade dress that has been provided by the Courts based on the protection of the brand name, or the seal of the unfair competition law.
Criticism of the legislative process, the law on industrial property
The law 9.279/96, which is an industrial property in Brazil, and is the subject of severe criticism are significant in relation to the process of its development. One of the main criticisms is the fact that the initial draft of the law was drawn up in the English language, which led to concerns about the adequacy of the law to the specific characteristics of the brazilian market, and as far as the transparency of the legislative process. This move was seen by many as an attempt to align it with the brazilian legislation, will quickly take you to the international standards, without a due consideration of the needs of the locals.
In spite of the needs that are evident in the update, there is no project that is relevant to the reform of the law on intellectual property. Several factors, political and economic elements that have influenced this process, resulting in a stagnation that may hinder the effective protection of intellectual property rights, in Brazil. The modernization of the law, it has been seen by some legal experts as essential in order to ensure that the innovations are to be properly protected, both at the national and international levels.
The need for reform, according to Newton’s Games
Professor Newton, Of the Games, a well-known expert in business law and intellectual property, and pointed out the urgent need for reform of the law on the protection of industrial property. In their study, De Luca shows that the current legislation does not answer to the realities and demands of today’s marketplace, especially as a result of the rapid pace of technological change. He suggests that it is a far-reaching reforms is crucial in order to ensure that the brazilian laws and regulations continue to protect their innovations and creations in the business field.
Conclusion
Intellectual property continues to be a key pillar for the protection of the innovation and to the promotion of competitiveness in the global market. The modernization of the legislation, and the adoption of innovative practices are needed to address the challenges posed by globalization and digitization. It is imperative for companies to seek appropriate protection for their assets, intangible assets, and ensuring that the platform can be preserved and cherished.
BRAZIL. Lei nº 9.279 de 14 de maio de 1996. Provides for the protection of industrial property. Diário Oficial da União, Brasília, DF, brazil, may 15, 1996. Section 1.
DANNEMANN, SIEMSEN, BIGLER, and the IPANEMA MOREIRA. Comments on intellectual property law, and alike. Rio de Janeiro: Renovar, 2001.
DI BLASI, Gabriel, GARCIA, Mario S.; MENDES, Paulo Parente, M., The protection of industrial property. Rio de Janeiro: Forense, 2002.
HONESTLY, Vera Helena de Mello. The Manual of commercial law. São Paulo: Revista dos tribunais, 2001. y-1.
https://www.migalhas.com.br/depeso/414406/propriedade-industrial-guardia-da-inovacao-e-exclusividade
Bullying and sexual harassment on the job: Identifying, combating, and the importance of reporting channels
Introduction
The ideal working environment is one in which the dignity, respect, and ethics are kept at. all rights reserved. However, the practice of bullying and sexual harassment are still a persistent problem, causing serious damage to the victims, and to other organizations. The present paper aims to identify the different types of bullying, the importance of reporting channels, the types of channels available and the best practices for their implementation, as well as the role of DET – Home Electronics to Labor in the audit.
The identification of the types of harassment
Bullying
Bullying is characterized by the repetition of abusive behavior that is intended to humiliate, embarrass, or to isolate the victim, usually with the intent to undermine his self-esteem, and then delete it from the desktop. Such behaviour may include the criticism of excessive and unjustified harm, social isolation, stress, or loss of a task, and even name-calling.
The identification of ‘moral harassment’ that requires the attention of the persistence, and the desire of the actions, if they occur in a systematic way, and are intended to be detrimental to the work environment of an individual or a group, it is likely that you are bullying.
Bullying can take a number of different ways, depending on the hierarchical relationship between the perpetrator and the victim, and they are:
Sexual harassment
Sexual harassment is a specific type of child abuse that often occurs in a context in which there is a relationship of power. It is characterized by the action of a sexually oriented, made by someone in a position of hierarchical, top-up against the contributor rank, even, in order to obtain advantages for women.
Sexual harassment is a crime and is defined in art. 216 of The Penal Code, which defines it as an act to embarrass someone in order to gain an advantage, or demanding sexual favors, subject to the condition of the immediate supervisor, or his victim.
This type of harassment is mainly manifested in:
Harassment, sexual
The harassment, and sexual, so as to differentiate itself from sexual harassment also occurs when an offender is committed to a lewd acts on a person without his or her consent, in order to satisfy his own lust, or other third parties.
The crime of harassment is sexual it is referred to in art. 215-a of The Penal Code, and it doesn’t require a reporting relationship between the perpetrator and the victim, it is common to occur between co-workers in the same position or a position inferior to a superior. Examples of this include rings that are inappropriate, kissing, forced, or in any other physical contact of a sexual nature are not permitted.
There are two main types of harassment, sexual:
The importance of reporting channels
The reporting channels are fundamental to the prevention of and fight against harassment in the workplace. It allows victims and witnesses of abuses to report the facts in a secure and confidential manner.
The effectiveness of the channels of the complaint is directly related to the trust that employees have in the system, which depends on many factors, such as anonymity, accessibility, and fairness in the handling of complaints.
Types of reporting channels
The reporting channels can be divided into two main types:
How to implement a channel for complaints effectively
For the ethical is to be effective, its implementation should follow a few best practices:
The importance of the guide and the positioning of the company to prevent control of the Y
To prevent the control from the labor ministry’s decision to the Ministry of Public Work, to minimize the risk of penalties, it is critical that companies take a proactive stance on the prevention of bullying and sexual harassment in the workplace. On the creation of informational brochures, and the position of the company in respect of the unfair practices that are key measures that demonstrate a commitment to compliance with the labor code, and the promotion of a healthy environment.
1. the Creation of informational brochures:
– The guide works as a how-to-guides for the employees and educating them about the different types of bullying, how to identify them, and the steps to be followed for reporting such conduct. These leaflets are to be distributed widely, and is updated on a regular basis to reflect changes in the law or in the internal procedures of the company. They are expected to cover:
2. The placement of the company’s
In addition to the primers, the company should adopt a policy of zero-tolerance against sexual harassment, and shall communicate this position is clear and consistent at all levels of the hierarchy. These include the following:
3.&you’re in this document;and to the following:
The company should be prepared for a potential audit of the labor ministry’s decision, by keeping all of your documentation is in order, such as:
4. Penalties and consequences
In the absence of these practices could result in severe penalties against the company in the event of an inspection by the labor ministry’s decision, including the following:
5. Prevention of profit.
To maintain a work environment that is free from harassment, not only to protect the company’s legal, but it can also promote a work environment that is more productive, healthier, and where all employees feel valued and respected. This reduces employee turnover, increases productivity, and strengthens the company’s image in the market.
The role of the DET
The GI is a digital tool that facilitates the communication between the Ministry of employment and the employer, in promoting greater transparency and efficiency in the fulfillment of the obligations of labor. Although it’s not a channel to the complaint, the DETAIL may help fight off the assault by ensuring that notices and communications to be promptly received and responded to by employers, strengthening accountability, and encouraging the adoption of best practices in the business.
Conclusion
The fighting at the moral and sexual harassment in the work environment, it is essential to create an environment that is healthy, productive, and responsible. The implementation of the reporting channels are effective, when combined with an awareness of the different types of bullying and its various manifestations, is the key to ensure the protection of our employees. This DETAIL, although it focuses on communication, they also play an important role in the creation of a work environment that is more secure, and more transparent. With the adoption of these measures, the companies not only to comply with their legal obligations, but also to demonstrate a real commitment to the dignity and well-being of its employees.
https://www.migalhas.com.br/depeso/414470/assedio-moral-e-sexual-no-trabalho-identificacao-combate-e-denuncia
The arbitration, and business competitiveness: A new approach to conflict resolution
The accelerated increase in Corporate Law, and the more intense competition among enterprises, which seek to constantly stand out and help it to evolve in the market, has led to the adoption of arbitration as a solution to a strategic level. In a scenario where you have both the agility and expertise that are essential to maintaining a competitive advantage in the arbitration, and stands as a powerful mechanism capable of resolving disputes with efficiency and discretion. This phenomenon is reflected not only in the search for solutions that are faster, but you also need to have a system for the resolution of disputes which is in line with the dynamics and complexity of the business environment today.
Thus, an institute of the law, which arose in the late 90’s it has achieved the greatest prominence in corporate law from brazil!
Base
It is both a form of private dispute resolution in which an impartial third party, known as the arbiter, is assigned to make a decision on the dispute. The decision of the arbitrator’s award shall be binding and the binding on the parties to accept and comply with the proposed solution.
The arbitrator is an impartial third party chosen by the parties, and must possess a high level of competence to resolve the conflict. The qualification of the arbitrator shall be in line with the complexity and the specific issues related to the conflict, thus ensuring that he has the knowledge and experience that are required for a proper and fair manner.
Even though the arbitration, it may seem like a decision on a purely coercive, it is important to note that, in this process, the parties will have the opportunity to negotiate with one another. The arbitrator, however, you are solely responsible for making the final decision, the closer to the arbitration of the concept of reconciliation.
In addition to this, the decision of the arbitrator has the effect, that is similar to the procedure out-of-court and can be enforced through the judicial system, provided that it meets the requirements of the law. If the judgment is in fact binding on, the parties must comply with the arbitration, which can be done by an arbitration clause, as provided for in art. 4 of the law 9.307/96, or by means of a charge (in scotland, formed after the onset of the conflict.
Further, we have got the international arbitration and ad hoc arbitration, and they are of two types that are worth your attention. The international arbitration provides a significant advantage, as well as the structure and the rules set out by the specialized institutions, to ensure that a process is more efficient and is less likely to fail. This is especially relevant in a business environment where speed and security, legal entity that are critical to the continuity of the business.
However, the law 11.079/04, which calls for public-private partnerships, it also allows arbitration as a means of problem-solving that demonstrates the growing acceptance of the institute in the various areas of the law, including in the public sector. This increase in the use of arbitration, which can be seen as a reflection of their effectiveness and the trust of the parties to deposit in the engine.
The process
In addition, the law 9.307/96, which governs the arbitration in Brazil, it lays down the rules for the formation of the arbitral tribunal in the arbitration proceedings and the enforcement of judgments. In spite of the flexibility of the procedure, it is essential to ensure that the application of the principles of non-contradiction, the fairness and equality of the parties.
Even though the arbitration, it does not allow for the double degree of jurisdiction, and the decisions that may be reviewed by the floods, which are intended to correct material errors, obscurities, inconsistencies, or omissions from, as well as a remedy for nullity of law.
In the field of corporate law, arbitration on turns out to be extremely important, because it deals with the questions of the nature of property. The preference for arbitration in the place of the judiciary due to her speed, expertise and confidentiality to, the factors are particularly advantageous in a competitive environment.
However, it is important to note that the arbitration shall entail significant costs related to the expertise of a specialist and the fees of the arbitrators and counsel, due to the need of the expertise of the investment involved in the process.
Another point to be considered is the question of the arbitrabilidade of the conflict. It is essential that all the parties are aware that not all disputes can be submitted to arbitration. The law 9.307/96 provides that only questions of law, equity is available, are subject to arbitration, which means that the application of this institute is to some types of disputes.
In addition, the confidential nature of the arbitration is something that can be extremely beneficial to your business because it allows your sensitive information will not be made public, contrary to what occurs in the process of the court. This feature is especially appreciated in the settlement of commercial disputes, where the protection of a trade secret, it may be important to you.
In the end, it is important to point out that, in spite of the costs associated with the arbitration, and many businesses find that investment is justified on the grounds of the benefits that an arbitration can provide, such as a reduction in the resolution of conflicts, and to preserve the business relationship. The expectation of a speedy decision, and the ability to select arbitrators with expertise in the matter in dispute, are all factors that often weigh heavily in the decision to opt for arbitration instead of in court.
Engine ally
Arbitration is emerging as a powerful tool in the resolution of corporate disputes, providing an alternative to an agile and expert in the legal system in the traditional sense. This method does not only allow to move fast, and sensitive, but also to adapt to the complexities of the disputes in the corporate landscape. However, to explore it more deeply, then the arbitration, and its practice can lead to new opportunities in order to maximize your benefits and to meet the emerging challenges. In the quest for continuous improvement in this field, you may open the door to innovative solutions, and effective, ensuring that one approach is more effective for the management of corporate disputes.
Law no. 9.307 of the September 23, 1996. Available at: https://www.planalto.gov.br/ccivil_03/LEIS/L9307.htm. Available at: [accessed 12 aug. 2024.
MARTINELLI, Gustavo. The arbitrage Business How to use for the resolution of corporate disputes. Available at: https://www.aurum.com.br/blog/arbitragem-empresarial/. Available at: [accessed 12 aug. 2024.
Blog Omie. That is, the competitiveness of the company, and what are the key elements. Available at: https://blog.omie.com.br/competitividade-empresarial-o-que-e-e-elementos/. Available at: [accessed 12 aug. 2024.
GOLDBERG, S. B.; SANDER, F. E. A.; ROGERS, N. H.; COLE, S. R., Dispute resolution, negotiation, mediation, and other processes. 4. ed. New York, Ny: Aspen Publishers, 2003.
https://www.migalhas.com.br/depeso/414553/arbitragem-e-competitividade-empresarial-abordagem
The compliance department of labor, and the investigations of the Public prosecution of the Work,
Over the past several years, the compliance department of labor has made it a central theme of the companies that are seeking to align their operations with the legislation, by promoting a work environment that is ethical, safe and secure.
The implementation of a compliance program effective not only to minimize financial and legal risks, but also to create a culture of respect for, and compliance for the benefit of both employers and employees, making it critical for all companies, which, through the compliance, they can avoid the challenges for the TWA, and they will be prepared for the oversight of the Home’s Electronic labour – DETAIL.
The concept of compliance
The term compliance has its origins in the verb be in English to comply, which means ‘to meet’, ‘sacrifice’. In the context of corporate legal and compliance refers to a collection of practices, rules, policies and guidelines to be adopted by an organization to ensure that their activities are in compliance with all applicable laws, regulations, and ethical standards that are applicable to their sector of activity. That is, the compliance department ensures that the company operates within the legal parameters, to prevent breaches and reduce the risk of penalties, and financial losses or reputation.
In the workplace, the compliance is particularly important to ensure that the company’s please read and comply with the norms of labor law, by creating a work environment that is healthy, just, safe and secure. This includes, with respect to the labor law, such as the payment of wages, and a guarantee of conditions and the health and safety at work, protection from discrimination, among other things.
The Importance of compliance with labour
The concept of compliance with labour involves the adoption of policies and practices that will ensure that your business is compliant with labor laws. Its importance is highlighted by the to avoid significant losses, arising out of, fines, investigations, and the actions taken by employees, especially those arising from oversight of the Y.
The Ministry of Labor is responsible for overseeing the compliance of the labor law in Brazil, and it has the power of research is vast, and it can act as a preventive or repressive. Companies that do not have a program for compliance with labor, well-structured they are at the highest risk of being a target of the investigation, which could result in severe sanctions, in addition to have a negative impact on the reputation of the company.
The benefits of compliance with labour
Companies that implement compliance programs reap a number of benefits, including the following:
Working in the compliance department of labor in your business
The implementation of a programme of compliance, labor law, requires a structured process that involves several stages, and the involvement of all levels of the organization.
The following are the key steps for implementation:
1. Risk mapping: The first step is to identify and map the major risks of employment with the company is facing, such as hiring practices, abnormal working conditions, inadequate and harassment in the workplace.
2. The establishment of Policies and Procedures that: – The company should develop a clear policy on compliance with labor laws that protect the rights of workers, and establish rules of conduct in the workplace. Among the key measures are:
3. Education and training: it Is essential to provide ongoing training for all employees regarding policies, regulatory compliance, workers ‘ rights and the procedures for reporting violations. Such training will help to raise the awareness of the employees and to create an environment of compliance.
4. The creation of a Channel from the Report: The company should establish a channel of confidential and is safe for employees to report irregularities and violations of labor standards, such as discrimination, harassment, or sexual orientation.
5. Monitoring and Auditing: auditing, internal and external, it is critical to monitor compliance with the policy, compliance and identify gaps. This process includes the ongoing review of risks and the implementation of improvements, where necessary.
6. Governance, Data Protection and Privacy: best practices in corporate governance, which include data protection and information security in the work environment, while ensuring that the privacy of the employees and to the security of sensitive information are to be adhered to.
7. Culture of compliance: The top management should be involved in the promotion of a culture of compliance within the company. Managers and leaders need to be the very first to support the efforts of the compliance officer, and encouraging a work environment that is fair and ethical.
The effective implementation of the compliance division of labour is therefore dependent on the adoption of practices that go beyond simple compliance with the law. It requires an ongoing commitment to ethics and compliance in all areas of the organization, while ensuring a work environment that is healthy and productive.
The role of the Y
The MPT plays a key role in the monitoring of working conditions, investigate complaints, irregularities, such as harassment, discrimination, labor, slave labor, among other violations. When the TWA identify violations of labor may initiate a survey of the civilian, which may result in, in terms of adjustment of conduct (TAC), or the same civil government, require the company to correct the deficiencies.
Companies that have a robust system of compliance with labour are more likely to be able to respond to the investigation of the TWA, to demonstrate that they adopt the preventive measures and corrective actions are effective to prevent the violation of the labor laws. This will reduce the chances of severe sanctions and to protect the organization from harm, reputational, and financial resources.
The Audit Directly from the DET – Domitius Electronic labour
The DET – Domitius E labor market, it is one of the recent technological tool designed to facilitate the communication and monitoring between the companies and the agencies monitoring, including the internal Revenue service, the Ministry of the Economy and the labor ministry’s decision. It allows companies to be notified electronically about any of the procedures for monitoring the labor market, ensuring greater flexibility in complying with the legal obligations.
In this way, the implementation of the program for compliance under the companies to prevent and prepare for the receipt of notifications by the DETAIL, leading to the fulfillment of the requirements in a timely manner, and avoiding penalties.
Conclusion
In a business environment which is increasingly monitored and demanding as for the compliance with labour is not just a formality, but rather a line of defense in protecting the vital from the devastating consequences of non-compliance. To bypass the need for a robust program of the compliance and may expose the company to the penalties to be severe, irreparable damage to your reputation-and to a work environment in which the dignity of all employees and is committed to. However, the adoption of such practices in the compliance and effective, the organization is not only to protect their health and avoid penalties, but you will also build a culture of respect and responsibility, it is essential to ensure a prosperous future and sustainable development in a market that is unforgiving and constant.
Carloto, No. compliance with labour: the work illustrated in the Visual Law, including all phases of the implementation, and the standard of the SO – 3rd Ed. – St. Paul, LTr, 2022.
https://www.migalhas.com.br/depeso/415202/o-compliance-trabalhista-e-as-investigacoes-do-mpt