Direitos Fundamentais Sociais Prestacionais e uma Abordagem da Atuação Legítima do Ministério Público em sua Defesa: o caso do direito social à saúde na comarca de Garopaba, Santa Catarina

Abstract

This research aims to shed light on how the Brazilian Public Prosecution Service more legitimately performs the constitutional mission, as a legal and political actor, to defend fundamental social rights, especially the right to health care. To this end, the problem will be covered from the standpoint of individual and collective rights, as well as from the use of extrajudicial and judicial instruments available to the institution. Therefore, it is necessary to analyze the current level of recognition of fundamental rights and some of the flaws identified in the Law due to the search for their effectiveness. Thus, in the analysis of the Public Prosecution Service's action based on illustrative cases on how the problem of the effectiveness of the fundamental right to health is performed in the forensic practice of Garopaba County, Santa Catarina (Brazil), as well as in a review From the literature on the position of the fundamental social right to health and recent jurisprudential precedents on the subject, we seek to clarify the identification of the existence of a legal implementation regime for social law (health and others) and that individual health benefits Escaping this system should be referred to as a matter of human dignity. The classifications, functions and dimensions of the social right to benefit thus provide an understanding of the possible spheres of judicial and extrajudicial action, individual and collective, of the Public Prosecution Service. In contextualization of the theme for the ministerial performance and as a conclusion, it is pointed out that the interpretation and application of the norm defining the fundamental social right in accordance with the defense of the legal order and social interests, must take place in this step before the system of implementation and constitutionally provided for.