dc.contributor | | |
dc.contributor | http://lattes.cnpq.br/3943349188212582 | |
dc.contributor | | |
dc.contributor | http://lattes.cnpq.br/7731891270111334 | |
dc.contributor | Nobre Júnior, Edilson Pereira | |
dc.contributor | | |
dc.contributor | http://lattes.cnpq.br/6219856215182127 | |
dc.contributor | Gurgel, Yara Maria Pereira | |
dc.contributor | | |
dc.contributor | http://lattes.cnpq.br/8686260157736966 | |
dc.creator | Barros, Alan Dias | |
dc.date.accessioned | 2014-12-11 | |
dc.date.accessioned | 2014-12-17T14:27:25Z | |
dc.date.accessioned | 2022-10-06T13:09:52Z | |
dc.date.available | 2014-12-11 | |
dc.date.available | 2014-12-17T14:27:25Z | |
dc.date.available | 2022-10-06T13:09:52Z | |
dc.date.created | 2014-12-11 | |
dc.date.created | 2014-12-17T14:27:25Z | |
dc.date.issued | 2013-09-20 | |
dc.identifier | BARROS, Alan Dias. Parâmetros de concretização judicial do direito fundamental à saúde no fornecimento de medicamentos. 2013. 222 f. Dissertação (Mestrado em Constituição e Garantias de Direitos) - Universidade Federal do Rio Grande do Norte, Natal, 2013. | |
dc.identifier | https://repositorio.ufrn.br/jspui/handle/123456789/13975 | |
dc.identifier.uri | http://repositorioslatinoamericanos.uchile.cl/handle/2250/3964779 | |
dc.description.abstract | In Brazil, social rights have always been considered secondary legal categories,
whose implementation could wait for the pending of political decisions. At the end of
the Second World War, International Law emphasizes the protection of human
beings, raising his dignity as a legal pillar of the legal orders and one of the main
foundations of Constitutions. At the post-positivism Constitutionalism, the realization
of social rights receives special attention with the assumption of supremacy and
normativity of the Constitutions, while the judiciary participates in the realization of
democracy, not only as applicator of laws, but also as the guardian of constitutionality
of the acts and administrative omissions, creatively contributing to the constitutional
achievement, filling gaps and normative state omissions. In this aspect, the supply of
medicines, whose costs can not be supported by the individual, keep a close
connection with the right to life, health and dignity of the human being, as the subject
of numerous lawsuits directed against the Public Administration. Such phenomenon
has caused intense debate regarding judicial activism and legitimacy of these
decisions, particularly on the need to define what are the limits and possibilities
considering the principle of separation of powers and the principle of reserve of the
possible; bieng this the problematic developed in this research. Thus, this research
aims to verify the legitimacy of judicial decisions that determines to the Public
Administration the compulsory providing of medicine to those who can not afford the
cost of their treatment, as well as, contribute to the dogmatic constructions of
parameters to be observed by judicial interference. Regarding the methodology, this
research has an investigative and descriptive caracter and an theoretical approach
based on bibliographical data collection (judicial and doutrine decisions) that received
qualitative treatment and dialectical approach. As a result, it is known that the judicial
decision that determines the supply of medicines to those individuals who can not
afford them with their own resources is legitimate and complies with the democratic
principle, not violating the principle of separation of powers and the reserve of the
possible, since the judicial decison is not stripped with an uniform and reasonable
criteria, failing to contain high burden of subjectivism and witch signifies a possible
exacerbation of functions by the judiciary, suffering, in this case, of requirement of
legal certainty. It is concluded that the Court decision that determines the
government the providing of medicine to those who can not afford the cost of
treatment should be based on parameters such as: the protection of human dignity
and the minimum existencial principle, the inafastable jurisdiction principle;
compliance critique of the possible reserve principle; subsidiarity of judicial
intervention; proportionality (quantitative and qualitative) in the content of the
decision; the questioning about the reasons for non-delivery of the drug through
administrative via; and, finally, the attention not to turn the judiciary into a mere
production factor of the pharmaceutical industry, contributing to the cartelization of
the right to health | |
dc.publisher | Universidade Federal do Rio Grande do Norte | |
dc.publisher | BR | |
dc.publisher | UFRN | |
dc.publisher | Programa de Pós-Graduação em Direito | |
dc.publisher | Constituição e Garantias de Direitos | |
dc.rights | Acesso Aberto | |
dc.subject | Direito à saúde. Ativismo judicial. Fornecimento de medicamentos | |
dc.subject | Right to health. Judicial activism. Drug supply | |
dc.title | Parâmetros de concretização judicial do direito fundamental à saúde no fornecimento de medicamentos | |
dc.type | masterThesis | |