A aposentadoria do professor e a inconstitucionalidade da aplicação do fator previdenciário no cálculo da renda mensal inicial.

Abstract

This study aims to analyze the unconstitutionality in applying the Social Security factor on the calculus of the initial income of constitutional teacher retirement, assuming that, as fundamental social right, the right to security requires an analysis as it is approached on neoconstitutionalism. Teacher retirement is a category of a very personal benefit, sui generis, because it contains communicant elements with the retirement contribution, also with the special retirement. However, the State, through the social security authority and the current social security laws, isn‟t familiar with the true historical and teleological substance of teaching jubilation, considering it‟s included on generalizing retirement by contribution time – therefore it is subjected to the incidence of the Social Security factor guidelines, according to Law nº 9.876 / 99. As a consequence, this research goes through the legislative treatment given to the teacher retirement throughout History, exploring the legal nature of the benefit, whose professional is truly exposed to physical and psychological stressful conditions – which is why the legislator attributed different criteria regarding the contribution period needed for granting the retirement here in debate, observing the need of valorizing the Brazilian education. Therefore, the incidence of actuarial calculation on the retirement here in debate, based on the justification of the principle of financial and actuarial balance, is materially unconstitutional, not only because the mentioned aspects, but also because of the disrespect to the constitutional principle of equality, regarding the indirect insertion of age requirement at different levels, producing individualized monthly rents. Consequently, it is assumed that there is a deflation of the top rule by a lower rule, compared to the rising of the teacher retirement to a constitutional matter. Thus this legal anomaly leads to a huge demand of actions in court, to seek, through judicial activism, the justiciability of fundamental social rights, having as an answer to the dispute, in most part, ratification by the judges the thesis here proposed - according the sentences and judgments shown along this work – incidentally keeping away the application of social security factor in specific cases. Therefore, this research shows how to successfully resolve this issue, in face of the of importance of this debate, the declaration of unconstitutionality, the concentrated control, the rules governing the application of the actuarial formula in teacher retirement, arranged in art. 29, § 9, II and III of Law nº 8.213/91, amended by Law nº 9.876/99. Based on what was exposed here, this paper aims to demonstrate the damage caused by the unconstitutional application of the social security factor in the constitutional retirement teacher, presenting their meaning and foundations. Thus, the deductive method of approaching was used; as a research technique, the literature; as procedure, the monographic method was applied. Therefore, it is necessary a detailed analysis of each point in order to the achieve the ultimate goal and complete understanding of the topic discussed.