A garantia de acesso à justiça frente à necessidade do prévio requerimento administrativo no processo previdenciário

Abstract

The judgment of the Federal Supreme Court (STF) of RE-RG No. 631240-MG established that, in order to configure the interest to act in the social security judicial action, a prior administrative request is required in the agencies of the National Social Security Institute (INSS). The purpose of this work is to analyze this determination, with the purpose of verifying the reflexes of the understanding of the High Court on the fundamental precept of access to justice, from the perspective of the Constitution and the democratic process. The abovementioned general passing decision was based on the increase in the number of requests for social security benefits and also on the number of special appeals appealed to the Superior Court of Justice (STJ), which resulted in a significant number of judgments determining the return of the case to the court hearing in order for the author to enter with the administrative request. Practical arguments were highlighted, for example, the reduction of the demands made to the Judiciary and the economy of human and judicial resources. However, Brazilian constitutional or social security legislation currently does not establish any limitation on the exercise of the principle of non-exhaustiveness of jurisdiction. Considering that the determination of the STF inserts a hitherto inexistent obstacle on a constitutional guarantee, it is necessary to investigate the implications of the decision in the face of fundamental precepts present in a Democratic State of Right, in which a greater effectiveness of social rights must be achieved.