O prévio requerimento administrativo nas demandas previdenciárias

Abstract

The issue concerning the obligation or not the prior administrative requirement for granting or review of social security benefits, to the National Institute of Social Security as a condition for the filing of the lawsuit is undergoing doctrinal and jurisprudential bitter debates. This paper aims to expose, after a brief normative and doctrinal context of the matter, the understanding of the main Brazilian courts on the subject on screen prior to the judgment of Extraordinary Appeal nº 631240 / MG and how will the scene after the said judgment. We seek also conduct a brief analysis about the conditions of action, particularly regarding the interest of acting and their fill through prior administrative requirement in plan actions. About this question is worth noting that we have some doctrinal currents which will be analyzed in the course of this work, but can be summarized as follows: The first current defends the obligation of prior administrative application, stating that the absence of such a request would cause the extinction the process without prejudice, for lack of interest to act, because there would have been a resistida. Por claim the other hand, the second current doctrinal claims to be the prior completely unnecessary administrative requirement in view of the constitutional guarantees of the right of action and the wide access to justice. Finally, the third current takes the middle ground, finds it necessary to request prior to filing of social security actions, however, with some exceptions in specific situations, these restrictions will be exposed when analyzing this third stream.