Competência da Justiça do Trabalho e a efetividade do direito fundamental à previdência

Abstract

The main purpose of our thesis is to prove that the jurisdiction of the Justice Federal Labour of the causes, arising from labor relations, in the face of General and Private Schemes Closed Pension Fund, is a criterion of effectiveness of fundamental social right to Social Security. Our reasons are the result of legal issues impacting on labor jurisdiction and the lives of workers. For example, the formal declaration, but not the fundamental right to effective security, corresponds to the absence of law, recognition that something needs to be changed and made to ensure the full enjoyment of this right. At the same time, the mere formal declaration of the law, critically denounces that the means chosen previously for this purpose have not correspondid. In the context of judicial review, this has occurred with the social right to welfare derived from the employment relationship. We consider as the main hypothesis that formalism, the burden and excessive delays typical of ordinary court - defended by neoliberal constitutionalism causes against the Closed Pension Scheme - are obstacles that prevent the employee from having access to justice, his right remaining ineffective. Another hypothesis is that, from the standpoint of the internal unity of the constitutional system, is not correct to attribute to ordinary jurisdiction to take derivative pension whose cause of action is the working relationship, when this (the same constitutional system) is the nucleus of material competence of JT. Our thesis also raises under question on set up a joint competence or not and teleological own antinomies between paragraph 2, art. Amendment Nº. 202 of 20/98 and art. 114, Sections I, VIII and IX of Amendment Nº. 45/04. Given this, our thesis argues that the rule in paragraph 2, art. Amendment No. 202 of 20/98, can not deny us the right to think critically about this issue, nor can it prevent us from presenting new legal elements that prove unsustainable in the face of the rule of art. 114, Sections I, VIII and IX of Amendment Nº. 45/04. That´s why is because the fundamental right to security arising from employment relationships asks effectiveness - the main practical result to be achieved. For this, the thesis argues that appropriate measures are required to leave the rhetoric to reality. It is the function of binding and immediate fundamental right that requires adaptation of the accrual to the nature of matter. ito crucial that requires the accrual basis of suitability to the nature of matter. For this, the thesis argues that this regime is the Labour Court. After all, the aspect of our model Should be shielded from law changes, except when it represents retrogression. That crucial to requires the accrual basis of suitability to the nature of matter. This scheme is the Labour Court. After all, the aspect of our model Should be shielded from law changes, except when it represents retrogression. The normative character composes the theoretical aspects of our thesis, complemented by the principles that illuminate methodologically systematic interpretation and application of the thesis. This is because the principles of simplicity, not burden, overlapping objective order, judicial economy, boost ex-officio of the process and speed are typical of JT, constitutionally shaped the actions arising from the relations of human labor, its controversies and disputes derived from their own decisions, regardless of legal status of the respondent. Finally, our thesis is presented as an effective judicial means to preserve the principle of unity of jurisdiction it all interest and effects arising legal, procedural and social brazilian society, which are the results