A exigibilidade do prévio requerimento administrativo e o interesse de agir na postulação judicial de benefícios previdenciários.

Abstract

The scope of this study is to analyze the enforceability of prior application administrative and its implications in the social security institution of the action. Intended to discuss the two currents argumentative - and against - namely: who defends the non obrigatoriety because of the supremacy of law and the principle of action of the together appreciable action by the judiciary, and that advocates indispensability of prior administrative requirement as a prerequisite for setting the resistance of the defendant and the interest of the plaintiff to act in the filing of a pension, respectively. Seeks to prove that, as a rule, there is no violation of the right of action and the absence of prior application administrative becomes devoid of interest to act the action, culminating in the dismissal without resolution of merit. It was necessary to highlight the relevance of administrative activity developed by the National Institute of Social Security sees it was used as parameters two research officers to corroborate data secure placements. This is the harvest of procedural information of Brazilian courts by the National Council of Justice whose result listed the hundred greatest litigators in the country and the extraction of data from statistical bulletin produced by the Ministry of Social Security that gathers all the information about the application, granting, rejection, values and amount of benefits under management of the National Institute of Social Security. Draw a line between the obligations of public servants and the rights of the applicant within the administrative process. It also aims to verify the economic factors surrounding the issue, notably in the financial cost and time of the administrative and judicial proceedings for both the welfare state as to the particular. Discourses themselves about the adoption of the previous application as administrative measure that can relieve the judiciary making the conduct of proceedings faster and avoiding processes without the actual occurrence of the dispute. Throughout the paper we present the evolution of legal understanding in most themes and positions taken, and especially on how the courts have been deciding regarding the enforceability of prior administrative claim. Regarding the methodological approach adopted in the present study, we have that use the deductive method and dialectic, starting from assumptions taken as general (right action), until reaching conclusions on particular and specific (minimum pension in action), as well as addressing the evolution of legal relations. The legal-exegetical methods, such as methods of procedure, seeking real intention of the legislature in drafting the law and distribution of state functions, and also the historical method for analysis and conceptual formation of the subject in the course of procedural development, assessing the problems found by the interpreterapplicator against the current legal landscape and how search technique is used to bibliographic and indirect documentation in the study and placements courts patriotic, about the topic covered. The conclusion is the need of prior application for administrative expenses to avoid public and private with unnecessary processes and save yourself the separation of the functions assigned to each power.