anuário brasileiro do setor de locação de veículos 2016 77 tados e municípios muitas vezes adotam leis próprias que indiretamente alteram o CTB. A locação com motorista atende, principalmente, pessoas que não possuem carteira de motorista, pessoas com deficiências (principalmente motoras), executivos, famílias em férias e pessoas que, diante da lei seca, preferem alugar o veículo com motorista para terem mais liberdade durante seus passeios. Trânsito. “Desse modo, pelo princípio da livre iniciativa, se a lei não proíbe, a atividade pode ser realizada livremente”. Em 2015, as locadoras que ingressaram na Justiça conseguiram impugnar multas aplicadas por autoridades municipais e estaduais no combate ao “transporte clandestino”. Essas vitórias judiciais são frequentes, porque a norma aplicável é o Código de Trânsito Brasileiro (CTB), mas os esA significant percentage of regularly constituted companies within the Car Rental Industry also dedicates to the branch of renting vehicles with a conductor (driver). This last one is a completely different modality of renting and/or collective or individual passenger transportation, considering that the rental with a driver is a mere variant of the movable rental contract, not losing its juridical nature. In the renting (with or without a driver), what the rental company does is to provide vehicles to the costumers, who start using them at the extent of their convenience and of their necessity, without a fixed route or a regular course (in accordance to articles number 565 and number 566 of the Brazilian Civil Code, “Código Civil/2002”). According to the explanation by Luiz Carlos Alves Carneiro, attorney for the Car Rental Companies Syndicate of Rio de Janeiro (SINDLOC/RJ), the fact that the rented vehicle has a driver does not misrepresent the renting, “because the vehicle is handed to the renter for his or her use, according exclusively to their conveniences and interests”. That is, the driver is only an improvement to the rental. It is obvious that the rental with a driver does not confuse with any other activity related to public transport, be it individual or collective. Therefore, considering “movables rental with a driver” the same as “passenger transport” implies disrespect for the law, what always occurs when a rental company is the target of a fine because of Rental of Movables X Passenger Transport this misinterpretation. This ends up hindering and even restricting the entrepreneurial activities of the rental companies, in a clear disobedience to the article 5th II and XIII of the Constitution. This is about directly assuring one the most basic constitutional rights of the car rental sector companies, which is the free exercise of professional activity. “Unlike the individual or collective passenger transport, vehicle rental, with or without a driver, is not ruled by any specific law”, adds Adriano Castro, Juridical Adviser for ABLA and FENALOC, member of the Thematic Chamber of Traffic Legislation of CONTRAN – the National Traffic Council. “This way, by the principle of free initiative, if the law does not prohibit, the activity can be carried out freely.” In 2015, rental companies that went to court managed to refute fines applied by municipal and state authorities during the battle against “clandestine transport”. These judicial victories are frequent, because the applicable is the Brazilian Traffic Code (CTB), but states and municipalities many times adopt their own laws which indirectly alter the CTB. The rental with a driver provides, mainly, people who do not have a driver’s license, people with handicaps (especially physical), executives, families on vacation and people who, because of the drinking prohibition for drivers, prefer to rent the vehicle with a driver to be freer in their excursions.
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