The advisory opinion 608 of the Superior Court of Justice

mandatory precedent regarding the non-application of Act 8,078/90 to the self-managed health insurance, the epistemological relevance of contemporary private law and the implied covenant of good faith and fair dealing for the protection of users

Abstract

This article deals with the advisory opinion 608 issued by the Superior Court of Justice (STJ) and the unenforced Act 8,078/90 to self-managed health insurances. The problem of this scientific investigation is the identification of the normative set for the search of solutions in the face of legal conflicts between the users of that contractual modality and the companies of the branch since they no longer fall into the consumer domain. In the first part of this work, the legal nature of the STJ’s position is discussed, elucidating its configuration as a mandatory precedent for the judicial trappings. Next, decisions are reviewed on that sodality in which Act 10,406/02 is applied as a result of the non-incidence of the Consumer Defense Code. Subsequently, an explanation is transposed for the innovative thesis of the jurist Otavio Luiz Rodrigues Junior, adopted as a theoretical framework, which proposes the epistemological revitalization of Contemporary private law, highlighting its relevance and the preservation of its central role in the private domain. Lastly, the implied covenant of good faith and fair dealing is presented as an important general clause for the treatment of the subject as a vector that allows the protection of the beneficiaries of supplementary health through self-management. It is concluded that, although the structure that protects consumers is no longer applicable to the heading subject, the Brazilian Civil Code contemplates as the satisfactory institute that will serve, in a relevant way, for the solution of the mentioned issues.