Regime de previdência complementar: natureza jurídico-constitucional e seu desenvolvimento pelas entidades fechadas

AUTOR(ES)
DATA DE PUBLICAÇÃO

2007

RESUMO

Which is the exact reach of the principles of private welfare regime, defined and detailed at constitutional level since the 20th Constitutional Amendment of 1998? Does this regime, especially the activities of closed private welfare entities, belong or not to Brazilian social security system? Is it correct to assert that this type of private welfare, managed by restricted pension funds constitutes an economic activity, despite not being profit-oriented nor so it is said aiming at market exchange? Which is, after all, its juridical nature within Brazilian Constitution? Those are fundamental issues for understanding the role of complementary pension system within Brazilian social security. Firstly, full apprehension of private welfare principles will depend on determining whether or not this regime is ruled by social security principles. This, on the other hand, demands not only the analysis of the law, but also the scrutiny of the nature of private subjects activities regarding social security. Although private welfare system is defined under the section related to social security in the Brazilian Constitution (Title VIII, Chapter II, Section III), and despite articles 194 to 204 clearly contemplating private subjects participation in social security actions, this regime is generally associated only to State activity concerning health care, social assistance and pensions. This can be partially explained by the major importance attributed to social security by the Constitution, in accordance with the Welfare State model. Complementary pension entities are precisely part of those private subjects developing activities of social security, classified by Brazilian legislation in two types: closed-end private welfare entities (known as Pension Funds, they are non-profitable, offering welfare plans restricted to employees of a single firm or group); and open entities (profitable, they administer plans to any natural person). This investigation will deal only with the former. Private subjects participate in social security (health care, social security and assistance) in a variety of ways, either acting under public law, as surrogates of the State and on its account, either exploring, under private law, an economic activity aiming only at improving State services. Therefore, it is crucial to establish in which of those two types falls the private welfare activity performed by closed entities, destined to protect the interests of specific groups of individuals, non-profitably. To answer these questions, Brazilian constitutional law will be critically interpreted and analyzed, in order to argue that closed complementary pension activities are to be considered economic activities disciplined by private law. They suffer, however, strong state intervention, which, by law, clearly integrates the closed segment into Brazilian social security system

ASSUNTO(S)

seguridade social -- leis e legislacao -- brasil previdência complementar private welfare direito previdencia privada -- brasil

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