O estudo da prova pericial judicial em sede de benefícios previdenciários como limitação às garantias constitucionais da vida e da saúde

Abstract

The objective of this work is to bring a contribution to the discussion about the importance of the expert evidence in the stock of actions that has as object the aid-pension disease. From the analysis of the concept and origin of the judicial evidence, its typology and its classifications, it is possible to envision how this institute has a fundamental role in the process, because it is through it that the allegations of the parties may be considered closer to a degree of probability of certainty; It is through proof of the facts that one reaches the truth in the right. Through the analysis of the homeland legislation, the CPC, as well as the foreign doctrine, it can be verified the importance of the expert in the process, since it brings the perception of the reality that the judge does not have; Even more in actions that require a medical knowledge, such as those dealing with the granting or maintenance of aid-disease by the INSS. In the face of the numerous refusals of disability benefits in the administrative harvest, it can be glimpsed why the municipality has a large amount of judicial proceedings and the decisive role that the judicial medical expert will have in the process. Thus, the magistrate must substantiate his judicial decision in the theory of the integrity of the law of Dworkin, to bring to the process a coherent response, appropriate to the Federal Constitution, respecting the principles, and having dimension of the very limitation of its Verbal, to the extent that it must broaden the vision that has of the forensic evidence as the main of the process, merging it with the other horizons and perspectives of the facts and evidence in the self, thus increasing its perception of reality. Through mechanisms of effective control and evaluation of expert reports and experts, as well as educational measures (such as update courses, discussion forums), the possibility of public tendering for judicial medical experts and the awareness of Application of the penalties provided for in the CPC when necessary (poor report or the provision of untrue information that entail damages to the parties), can transform the reality of the judicial forensic evidence, not only in the special Federal Court of Fortaleza , but all over the country.