Os benefícios previdenciários e a exigência de prévio requerimento administrativo: uma análise do Art. 5°, XXXV da Constituição Federal e dos princípios basilares da administração pública

• Autor(a) principal: Gama, Dayane Aparecida da Costa
• Data de Publicação: 2022
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Repositório da Faculdade de Direito de Vitória
• Texto Completo: http://191.252.194.60:8080/handle/fdv/1520
• topic: Direito previdenciário; Exigência de prévio requerimento administrativo; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

The present study analyzed the requirement of prior administrative application of social security benefits pursuant to art. 5, XXXV of the Federal Constitution and the basic principles of public administration, with regard to controversies found, concrete situations and constitutionality. in the first chapter the conditions of the action provided for in the Code of Civil Procedure were analyzed, analyzing the legitimacy of the requirement of prior administrative application as necessary requirement the configuration of the interest to act, in the need aspect. Through doctrinal analyzes and jurisprudential investigations, this study concluded that the main factor generating legal uncertainty and discretion in social security processes is the difficulty of applying the Law in a homogeneous way with the concept of justice in the face of a concrete situation, as well as the disability from direct formal sources, passing the discussion to the observation of the principle of jurisdictional inalienability in relation to said requirement. In the second chapter, this study verified the effects of the principle of inalienability of jurisdiction through of an analysis of the social security relationship. In the third chapter, the opposing doctrinal and jurisprudential currents, when it was presented the position adopted in this study, defending the guarantee of access to justice for insured persons, as well as the principle of non-removable jurisdiction provided for in art. 5, item XXXV of the Federal Constitution, thus guaranteeing the legal security, concluding, therefore, for the viability and constitutionality of the requirement of prior administrative application, since, as studied, this requirement, per se, does not violate the principle of inalienability of jurisdiction. However, in In all cases, the constitutional principle enshrined in art. 5, item XXXV must prevail