Regulação versus judicialização: o duplo sistema regulatório da saúde suplementar
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2020-01
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Ribeiro, Leandro Molhano
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This work analytically describes the relationship between regulation and litigation in the same economic activity, to investigate whether the performance of the Judiciary branch, in its administrative and judicial main organs, can be viewed as a true regulation through litigation in the case of supplementary health. Firstly, through a literature review, the doctrine that compares the activity of regulators and judges on the condition of complementary, substitute or exclusionary actions is revisited, in order to evaluate advantages and disadvantages of existing models in different legal systems, in which Regulatory Agencies and Courts create and interpret rules of conduct for citizens and firms. After, giving concrete ground to the theory, the performance of the sector's regulatory agency, the National Agency for Supplementary Health (ANS) is analytically described, through its normative and conflict resolution activities, in comparison with the practice of two representative bodies from the Judiciary branch: the Superior Court of Justice (STJ), for its importance as precedent maker and as last instance to judge private litigation; and the National Council of Justice (CNJ), as policymaker for the Judiciary branch and producer of administrative guidance on the subject under study. Examining the compatibility between the performance of these three actors with existing laws besides an empirical research by which the use o CNJ guidelines was quantified as a basis for second instance judgments, it was possible to verify, within the existing dual regulatory system, that it is not possible to point to the presence of regulation through litigation of supplementary health issues, currently, within research boundaries.
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Regulation through litigation Supplementary health National Health System Judicial review National Agency for Supplementary Health National Council of Justice. Superior Court of Justice Regulação via judicialização Saúde suplementar Sistema de saúde nacional Controle judicial Agência Nacional de Saúde Suplementar Conselho Nacional de Justiça Superior Tribunal de Justiça