A posição jurídica dos usuários e os aspectos econômicos dos serviços públicos

• Autor(a) principal: Pereira, Cesar Augusto Guimarães
• Data de Publicação: 2005
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://tede2.pucsp.br/handle/handle/7800
• topic: Public utility services; Users; consumers; user fees; taxation; Servico publico; Direito administrativo; consumidor; direitos fundamentais; reserva do possível; tarifa; taxa; Usuarios; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO ADMINISTRATIVO

This work is based on a certain conception of users of public services, defined here as participants in a specific legal relationship binding them to the service provider. This idea stems from the Celso Antonio Bandeira de Mello's proposition of 2002 that public utility services are only those apt to be used individually by specific users. Chapter 2 examines the legal system and deepens the theoretical consequences of this proposition. It compares the user to similar individual positions. Chapter 3 is dedicated to the legal situation of the user vis-a-vis the service provider. They are linked by a predominately statutory bound that allows however certain spaces of freedom to be filled by consensus. This is an important condition for Chapter 4, which analyzes the relationship between consumer law - under the Consumer Protection Code - and the public utility services. It intends to clear certain mistakes by identifying boundaries and grounds for the limited application of consumer law. These three chapters form the part of the work dedicated to the legal position of the user. The following chapters deal with certain economic aspects of the service and their implications. Chapter 5 examines the creation of utility services as linked to the coming-of-life of constitutional fundamental rights and values. It examines the economic constraints to the provision of services. It establishes the rights of (hypothetical or potential) users with regard to the creation and organization of utility services. This is a supply-based analysis. Chapter 6 proposes a demand-oriented approach: it examines the position of the users and the remuneration of utility services (by taxes or user fees). The work reviews deeply entrenched opinions and proposes pragmatic and flexible criteria for the creation of user fees unlike those applicable under tax regulations. By proposing that the user should be placed in the center of any analysis of public utility services, this dissertation aims at abandoning a view of mere protection of the user and enhances the idea of individual responsibility. The first step towards that goal is to acknowledge that the service is provided always to a certain specific user. This person is entitled to individual rights and can claim his satisfaction. It proposes that the user be seen as a citizen, not a subject. He should not be guarded, but entitled and encouraged to exercise individually or collectively his rights with regard to public utility services