O princípio constitucional do equilíbrio atuarial aplicado aos planos de previdência complementar fechada segundo a jurisprudência atual do STJ

Abstract

Expressly inserted in the Constitution of 1988, through Constitutional Amendment no. 20, of December 15, 1998, the principle of actuarial balance came to subsidize the legislator and the applicator of the norms to the necessary sustainability of the Brazilian social security system, resulting from the creation or expansion of benefits without adequate financing planning. The present work aims to present the consolidated and current jurisprudence of the Superior Court of Justice (STJ) in cases judged in repetitive claims resolution incidents in which the constitutional principle remains applied to issues related to closed supplementary pension entities. Specifically, it was also dealt with the delimitations that such jurisprudence brings, as a guiding beacon for the whole community, of what can be questioned, or not, in future lawsuits from their legal-procedural reflexes, including those inherent to succumbence. procedural. A relevant point, still, despite the crystallization of jurisprudence after the IRDR judgment by the STJ on the application of the aforementioned principle, concerns the future legal possibilities of reversing the understanding from the activation of those legitimated for such task. It was concluded that the STJ defined several issues related to Closed Complementary Pension Entities and their participants and beneficiaries, having even revised and updated some previous understandings for which the interpretation of the law is more complex. It is also clear that, from the cases that deal with issues that are directly linked to the balance of mathematical reserves, the STJ, emphasizing the associative and mutualist character of the EFPC benefit plans, which do not operate in a market regime, made the most restrictive interpretation of the legislation in order to provide them with less legal uncertainties.