Abstract
This study considers to which extent the proceedings regarding welfare benefits in Brazil under Law 8742/1993 can be changed due to its own nature, namely the modulation exerted by welfare specifics in general civil procedural law. In particular, it focuses on the procedural institute of res judicata (or claim preclusion), opposing its natural idea of decisiveness with two major points: (a) the temporary nature of the welfare benefit; (b) the possibility of putting it in perspective after the evolved constitutional construction of the benefit’s legal requirements. It also tries to lay down the limits of the 2-year review set forth by law, and the possibility of reshaping res judicata according to new constitutional case law of the Brazilian Supreme Court.
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Notes
- 1.
In this work, when we talk about welfare benefits, we are focusing on the one established by the article 203 of the Brazilian Constitution and regulated by the Law 8742/93.
- 2.
Brazilian Constitution, article 203(V).
- 3.
Revising a previous point of view, we hereby adopt a more comprehensive take on instrumentality, which dictates that one should not only care to seek answers in procedural law for posed substantive law questions, but also in the social reality where such law is inserted into and that is much more complex than what is regulated by law. Such broader point of view is called by de Salles (2011, pp. 13–27) methodological instrumentality.
- 4.
Many ideas exposed here, with proper adaptations, have been initially broached in article “Legal Aspects Concerning Disability Security Benefits” (“Aspectos Processuais dos Benefícios Previdenciários por Incapacidade”), by Bruno Takahashi (2012).
- 5.
Since January 2015, the national minimum wage is R$ 788,00 Brazilian Reais or approximately $262,00 US Dollars.
- 6.
Such understanding, with a few dissenting voices, has recently been adopted by the Brazilian Supreme Court (STF) in a decision with the following syllabus: “EXTRAORDINARY APPEAL. GENERAL REPERCUSSION. PREVIOUS REQUEST. ADMINISTRATIVE AND INTEREST TO SUE. 1. The definition of conditions for regularly exercising the right to file a lawsuit is compatible with Article 5(XXXV) of the Constitution. The existence of the interest to sue is characterized by the need to bring matters to court. 2. The concession of welfare benefits depends on the request of the interested party, and there is no threat or loss of rights before its analysis and rejection by INSS, or if the legal deadline for analysis has expired. One must observe, however, that the previous claim requirement cannot be understood as the need to go through all administrative instances. 3. The need for previous administrative claim must not prevail when the Government’s understanding is clearly and consistently contrary to the applicant’s claim. 4. In case of requests to review, re-establish or keep a benefit that has been previously granted, considering that INSS is legally bound to grant the most advantageous service, such claim may be brought directly to court – unless it is a substantive matter that has not yet come to the Government’s attention – since, in this case, INSS’ conduct already anticipates the claim’s rejection, at least an implied rejection. 5. Given that case law on the subject has a wide range, even in the Supreme Court, a transition formula must be devised to deal with ongoing lawsuits, and shall be done as follows. 6. As for actions filed until the conclusion of this session (Sept. 3rd, 2014), if they have not come from a previous administrative claim when it was so required, the following shall apply: (i) in case the lawsuit has been filed in a itinerant court (Juizado Itinerante), the lack of previous administrative claim shall not imply dismissal; (ii) in case INSS has already filed an answer, the interest to sue will be characterized by the claim’s dispute; (iii) the other lawsuits that do not fit in items (i) and (ii) will be stayed, observed the system below. 7. In stayed actions, the plaintiff shall be notified to file the administrative claim within 30 days, otherwise the action shall be dismissed. Once the proof of filing an administrative claim is produced, INSS shall be notified to answer the claim within 90 days, within which the autonomous agency shall gather all evidence they might need and decide upon the subject. If the claim is accepted at administrative level, or if it’s the applicant’s fault that the merit cannot be analysed, then the action shall be dismissed. Otherwise, the interest to sue is characterized and the case shall proceed. 8. In all cases above – items (i), (ii), and (iii) – both the administrative and the judicial analyses must take the administrative lawsuit filing date into consideration for all legal purposes. 9. We hereby partially accept the extraordinary appeal to correct the previous decision so as to order the case records to be sent back to the 1st instance court, and the plaintiff – who claims to be a rural worker – to be notified to file the administrative claim within 30 days, otherwise this lawsuit shall be dismissed. Once the proof of filing an administrative claim is produced, INSS shall be notified to answer the claim within 90 days, within which the autonomous agency shall gather all evidence they might need and decide upon the subject, taking the lawsuit filing date into consideration for all legal purposes. The result shall be informed to the court, which will analyse whether or not there is interest to sue. (RE 631240, Reporting Judge: Chief Judge ROBERTO BARROSO, Full Bench, session on 03/09/2014, ELECTRONIC DECISION. GENERAL REPERCUSSION – Merit DJe-220 DISCL 07-11-2014 PUBLISH 10-11-2014)”.
- 7.
The New Code of Civil Procedure (CPC) was enacted by Law 13105, of March 16th, 2015, published on March 17th, 2015. According to its Article 1045, the new CPC shall come into effect 1 year after the official publication, that is, March 17th, 2016. Since it’s a recent law, we chose to maintain references to the former Code of Civil Procedure (Law 5869, of January 11th, 1973).
- 8.
It’s in this context that Marinoni (2008) warns that “facing continuous relationships, there are circumstances that change (provisional elements) and circumstances that are the same (perennial or stable elements)”.
- 9.
What, within the same sequence of ideas, does not prevent the use of the same interpretation when there are unequal conditions in the actual case between the original claim and INSS, even if it’s not a rural worker.
- 10.
Loosening the possibility of dismissing without prejudice, Savaris (2010, p. 89) ponders: “What if the judge starts evaluating the evidence, wouldn’t he be examining the merit to, after concluding upon its lack or insufficiency, dismiss the case without prejudice?”.
- 11.
It is clear, on the other hand, that in the event it is evidenced that there were no unequal conditions in the case, that the plaintiff has willingly omitted evidence in the previous case, the unappealable decision still stands, and even the possibility of applying penalties due to malicious prosecution exists.
- 12.
RE n° 567.985, vote by Chief Judge Marco Aurélio.
- 13.
Among others, the following decision is worth mentioning: “Internal interlocutory appeal in the interlocutory appeal. Precedent 343/STF. Non-applicability. Precedents. 1. Case law in this court is solid in the sense that Precedent 343 does not apply when the matters in the case records are of constitutional nature, even if the decision challenged in an action for relief from judgement has been based on disputed interpretation or on previous understanding to a Precedent set by the Supreme Court. 2. Internal interlocutory appeal rejected.” (AI 703485 AgR, Rep. Chief Judge Dias Toffoli, 1st Bench, session date 11/12/2012, ELECTRONIC DECISION DJe-027 DISCLOSED 07-02-2013 PUBLISH 08-02-2013).
- 14.
Article 966(V) of the new CPC refers to a manifest violation of a “legal norm” as a case of vacation of judgement, and no longer a “literal law provision”. Even so, considering the precedents that gave rise to Precedent 343, we understand that the constitutional matter will keep prevailing, without the need to change the interpretation given by the Supreme Court.
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Takahashi, B., Garcia, K.C.L. (2016). Specifics of Claim Preclusion in Lawsuits Involving Welfare Benefits. In: Serau Junior, M., Caetano Costa, J. (eds) Assistance Benefits in Brazil. Springer, Cham. https://doi.org/10.1007/978-3-319-27046-3_9
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