O mínimo existencial e sua aplicação pelo poder judiciário no que tange ao direito fundamental à saúde

Abstract

With the recognition of social rights, which can be associated to the second dimension of fundamental rights e to the Welfare State model, it started to be demanded from the State a positive and prestacional acting, so that those rights could be effected. The right to health is included among the social rights. In this context, it can be verified that, many times, when the state entities are omitted or insufficient, the jurisdictional acting, to preserve the fundamental right of health, is restricted to the implementation of the existential minimum, which is related to the principle of human dignity. Therefore, the work is divided in two chapters. In the first one, it was intended to delineate a historic panorama about the state models’ evolution and about the fundamental rights’ dimensions, as well as to present the doctrinaire understanding about the social fundamental right of heath and about the existential minimum. In the second chapter, there were analyzed decisions from the Justice Superior Court and from the Federal Supreme Court about the conception and the criteria used to apply the existential minimum, and also eventual limits that may be imposed to this concept, focusing on the principle of separation of powers and on the clause of reserve for contingencies.