Vested right and its reprcussion on Social Security Law / O direito adquirido e sua repercussão no direito previdenciário

AUTOR(ES)

Jacqueline Maria Moser

DATA DE PUBLICAÇÃO

2005

RESUMO

A vested right is, according to Italian Gabba, that which "(a) is a consequence of a fact that is able to accomplish it due to the law of the time at which the fact was completed, although there has not been the opportunity to claim it before the new law has ruled it; and that which (b) in accordance with the law under whose domain the fact it derives from has been performed has immediately started to be part of the wealth of the one who is entitled to it". In this study, the purpose is to investigate about the limit or range of a new law edition on juridical situations being formed or previously established due to the vested right and the expectant right, as well as to research cases decided by Courts, especially by the Federal Supreme Court, on vested right after the 1988 Brazilian Constitution was promulgated. The reach of the concept of vested right is presented under several approaches and its amplitude in the reliability of juridical relationships already established varies according to the interpretation it is given. The starting point for a vested right as a constitucional right or privilege to the stability of relationships is linked to the fulfillment of all requirements established up to the moment that is being considered, what would afford it the status of an unchangeable or rocklike clause. When not all the requirements preestablished in the juridic order are fulfilled for one to be entitled to a right what exists is a mere expectation of the right in development or formation, that is, there is no guarantee, not even partial, that the legal benefit established previously will be afforded. At the end, it will be possible to point out conclusions, although provisional, for the hypotheses raised, to clear up eventual exceptions and to remark the possible aspects that may confirm or refute the hypotheses, presenting new possible perspectives for studying the theme.

ASSUNTO(S)

direito previdência social - legislação direito constitucional direitos adquiridos

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