Benefício de prestação continuada no ordenamento jurídico brasileiro: o atual entendimento do Supremo Tribunal Federal acerca do requisito da miserabilidade.

Abstract

This monographic work objectifies to accomplish a study about the general and principled aspects of Social Assistance while species of the Social Security kind, pointing out specifically, the Continuous Contribution Benefit – CCB due to article 20 of Organic Law of Social Assistance, a benefit due to the elders and disabled people who prove they do not have conditions to provide his own subsistence and have it not provided by his family. In this sense, the main focus of the present study is to analyze the present comprehension of the Supreme Federal Court about the requisite of miserableness required for obtaining of CCB. The choice of the theme is justified by the social reach and protective character of the benefit, since it aims to guarantee a minimum existential for those who need it. To those reported elsewhere objectives are achieved, the present being used in this work will be qualitative, it will provide greater understanding to the topic discussed. Moreover, the method of approach is deductive and the search may be classified as the technical procedure as literature, because it uses the interpretative analysis of the legislation on social welfare policy; a qualitative assessment of jurisprudential positions; and refers to the doctrine and scientific articles. Therefore, we seek through this work show that the partial unconstitutionality statement without null pronunciation of art. 20, paragraph 3 of LOAS handed down by the Supreme Court established, for the judiciary, a legislative gap, leading to serious legal uncertainty as to the criteria characterizing the economic hypo-sufficiency required the assistance applicant.