A tutela jurisdicional dos direitos fundamentais sociais e as políticas públicas

• Autor(a) principal: Araújo Filho, Luiz Paulo da Silva
• Data de Publicação: 2019
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/9184
• topic: Fundamental social rights; Judicial power; Individual actions; Class actions; Scarcity of resources; Public policy; Egalitarian action; Direitos fundamentais sociais; Poder Judiciário; Ações individuais; Ações coletivas; Escassez de recursos; Políticas públicas; Atuação igualitária; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

This thesis aims to investigate how the judiciary should act in a scenario filled with immense judicialization, scarce resources and growing interference in public policies due to the constant reference to social rights in the Federal Constitution, exemplified in article 6, and therefore, regarded as fundamental social rights, resulting from the widespread number of lawsuits claiming for such rights. The study should be able to serve as an effective tool for the achievement of fundamental objectives of the Republic, thus avoiding that the decisions may turn out to be a factor of ungovernability, social imbalance and despoilment of public income by those who have access to Justice; namely, by the elite, as noted by renowned legal scholars. To do so, a brief analysis of the Brazilian social situation will be examined, with reference to data on inequality and poverty, basic sanitation, health, education and the job market in order to establish a candid dimension of the country s social problems, which are deemed imperative for the proper interpretation of the Constitution. After that, some general considerations will be made about the classification of social rights, the guarantee of judicial review and the judicial control of these rights, establishing premises for the examination of the proposed matter. Then, several texts about governability and constitutionalism in Latin America will be analyzed so that common difficulties can be identified and possible solutions can be sought. In Chapter IV, three paradigmatic cases decided by the Supreme Court of South Africa will be studied, whereas in chapter V, the evolution of class actions to complex litigation will be covered, taking structural injunctions into consideration. Subsequently, back to the Brazilian scenario, the budget constitutional system, the Judiciary's position and the disregard for the public and fiscal budget will be overseen. Soon after that, the concern about the overwhelming flood of lawsuits and the compromise of governability, jurisprudence, and critical analysis of trials of the Superior Court of Justice and the Federal Supreme Court will be discussed. Finally, in Chapter VIII, the research will go on to focus upon the judicial protection of social rights, delving into each of the following items: class actions, individual actions or individual actions with collective effects; the claim, the merits of the case and the merit itself; the defendant's answer and the need for specific information on relevant public policies; a new lawsuit; Bill of Law nº 8,058 of 2014; the effort for class action; the extra procedural performance of the Public Prosecutor's Office and the trial; and in sum, the imperative need for egalitarian judgments by the Judiciary, determining the general implementation of the public service even in individual actions in view of the fact that no exclusive benefit, unable to be promptly universalized, could be granted