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

by Pulino, Daniel

Abstract (Summary)
Which is the exact reach of the principles of private welfare regime, defined anddetailed at constitutional level since the 20th Constitutional Amendment of1998? Does this regime, especially the activities of closed private welfareentities, belong or not to Brazilian social security system? Is it correct to assertthat this type of private welfare, managed by restricted pension fundsconstitutes an economic activity, despite not being profit-oriented nor ? so it issaid ? aiming at market exchange? Which is, after all, its juridical nature withinBrazilian Constitution?Those are fundamental issues for understanding the role of complementarypension system within Brazilian social security. Firstly, full apprehension ofprivate welfare principles will depend on determining whether or not this regimeis ruled by social security principles. This, on the other hand, demands not onlythe analysis of the law, but also the scrutiny of the nature of private subjects?activities regarding social security. Although private welfare system is definedunder the section related to social security in the Brazilian Constitution (TitleVIII, Chapter II, Section III), and despite articles 194 to 204 clearlycontemplating private subjects participation in social security actions, thisregime is generally associated only to State activity concerning health care,social assistance and pensions. This can be partially explained by the majorimportance attributed to social security by the Constitution, in accordance withthe Welfare State model.Complementary pension entities are precisely part of those private subjectsdeveloping activities of social security, classified by Brazilian legislation in twotypes: closed-end private welfare entities (known as ?Pension Funds?, they arenon-profitable, offering welfare plans restricted to employees of a single firm orgroup); and open entities (profitable, they administer plans to any naturalperson). This investigation will deal only with the former. Private subjectsparticipate in social security (health care, social security and assistance) in avariety of ways, either acting under public law, as surrogates of the State andon its account, either exploring, under private law, an economic activity aimingonly at improving State services. Therefore, it is crucial to establish in which ofthose 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 criticallyinterpreted and analyzed, in order to argue that closed complementary pensionactivities are to be considered economic activities disciplined by private law.They suffer, however, strong state intervention, which, by law, clearly integratesthe closed segment into Brazilian social security system
This document abstract is also available in Portuguese.
Bibliographical Information:

Advisor:Wagner Balera

School:Pontifícia Universidade Católica de São Paulo

School Location:Brazil

Source Type:Master's Thesis

Keywords:Private welfare

ISBN:

Date of Publication:06/13/2007

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