Application of the judgment of secundum eventum probationis in social security law

Abstract

This study aims to understand the general rule of res judicata established by the code of civil procedure and its incompatibility with the social security process. Social security law is recognized as an authentic fundamental social right of a food nature closely linked to the principle of human dignity laid down in the Federal Constitution of 1988, the purpose of which is to provide the insured with a decent living. Due
to the fundamental and social character of the social security benefit, the legislator should be oriented to elaborate legal norms that aim to find adequate solutions to questions such as the way of formation of the thing judged in this area. Often the right to benefit is denied by unfair court decisions and, consequently, are covered by the res judicata, leaving the insured unable to regain his right to a certain benefit.
Given this, we sought to analyze the application of the judged secundum eventum
probationis, which prevents the formation of something judged material in unfounded
court decisions, as a procedural technique more consistent with the theory of process,
and, above all, more legitimate and appropriate for social security claims. To reach
the objective of this article, the hypothetical deductive method is used, based on
bibliographic research, jurisprudence and legislations.