Direito social à seguridade e a proibição do retrocesso: o caso do salário mínimo e os benefícios previdenciários

Abstract

The drafting of the 1988 Federal Constitution was based on the organization of a number of sectors of society. These included social security recipients, who were experiencing the reduction of the purchasing power of the benefits paid by Social Security, in light of the drastic reduction of their monetary value, following the application of legally established indices that decreased the amount received, to the detriment of the standards of living existing at the time of granting of the respective social security benefit. To avoid the occurrence of these factors, several constitutional provisions provided for the irreducibility of benefits in the scope of social security, including the provision regarding the irreducibility of amounts paid as a guiding principle of the subject – Article 194, sole paragraph, item IV, of the Federal Constitution – implying compliance therewith in the drafting of non-constitutional legislation. One of the provisions in the constitutional text to achieve this was Article 58 of the ADCT, which established the review of continued benefits maintained by Social Security on the date of the promulgation of the Constitution, providing for their revision, in order to restore the recipients’ purchasing power, expressed in the number of minimum wages, at the date of their granting, until the subsequent publication of a law, with criteria for their updating. The purpose of this paper is to verify whether the monetary value of the benefits paid to Social Security recipients has been lost, characterizing undue constitutionally forbidden retrocession, based on the criteria adopted for its monetary restatement after the publication of Act 8,213/91, which regulated the matter. To this end, the scope and receipt of the retrocession prohibition by the Brazilian constitutional legal system will be addressed, particularly in the scope of Social Security, as well as the limits of the legislative power in the preparation of laws based on this legal reference, given the prohibition regarding reducing the social rights consolidated by the Federal Constitution. Thus, the issues of legal certainty and their significance will be addressed, as well as the issue of the enforceability of social rights, not only from the focus of positive benefits to be granted by the state, but also from its performance in the form of abstention, that is, the impossibility of harming situations conquered in the scope of Social Security. Based on doctrinal research and on the indices applied by the laws that set out the criteria for updating the monetary values of benefits paid by Social Security, the goal of this study is to demonstrate their insufficiency to maintain their purchasing power, as well as the violation of the principle of legal certainty and prohibition of retrocession in the social security area