Análise acerca da (in)constitucionalidade da pena de cassação de aposentadoria do servidor público federal.

Abstract

This study aims to evaluate the constitutionality of the penalty of retirement annulment of the federal public server, especially after the constitutional changes that added the contributory character to the social security. It is necessary to remember that until the outcome of the CE 03/93, the retirement of the public server had a rewardly nature. This is why the study of such theme is importante, due to lots of the doctrinal and jurisprudencial controversies which still revolve the application of the disciplinary penalty, besides the need to seek for solutions that assure legal security in the relations between server, Public Administration and Social Security. This study has as main purpose to analyze the constitutionality of the penalty of retirement annulment and, specifically, tries to comprehend themes about the problematization, such as the public server and his specificities, the changes in the legislation and in the jurisprudence and to list the arguments that base the (un)constitutionality of the disciplinary sanction. For that, it was used the deductive approach method; the bibliographical and jurisprudencial research as search techniques, and the historical-evolutionary procedure method. Therefore, the study started from the following question: considering the evolution of the national order related to the social security, the penalty of the retirement annulment applied to the public servers of the Union is coordinated with the constitutional precepts? In this scenario, despite the pacific jurisprudence of the FSC and the JSC which understand the constitutionality of the penalty, when doing a research in the doctrine, it is possible to realize that the penalty is disproportional, harming fundamental principles of our legal system. Besides, it is imperative to register that the FSC, in its decisions, has not yet made a statement about the contributions of the social security scheme, which creates doubts regarding the justice and the decisions that are still in force.