Retirement is a property right available and this foundation, the insured can renounce it for new benefit most advantageous. This is the central argument that led to the consolidation of the jurisprudence of the Superior Court of Justice (STJ) for the admission of new retirement to replace the older less valuable.

However, there was an inquiry as to the effects of renunciation: once canceled the old retirement should the insured to return the amounts received? Two opposing positions have emerged in the debate in case law, an obligation by the other unnecessary.

The obligation is argued that the solidarity that inform the social security system requires the return of amounts paid to maintain system balance. This is still prevalent in the position TRF 4th Region (2009.70.03.000836-5, DJ 05.26.2010).

The Supreme Court, however, recently hosted the thesis of the unnecessary return of values. Argues that the waiver is a right of the insured, and does not require repayment of amounts (Resp 1184410 of 04/13/2010). This understanding was consolidated in the Supreme Court, as seen from the exemplary menu drawn from recent judgment:

"The waiver of retirement, for purposes of exploitation of the time of contribution and grant of new benefit, either in the same scheme or under any other business, no matter the return of perceived values," while it lasted by the general retirement payments, food in nature, were unquestionably due "(REsp 692.628/DF, Sixth Class, Rapporteur Minister Nilson Naves, DJU to 09/05/2005). Precedents for both classes components of the Third Section. "

The main beneficiaries of this thesis are the INSS retirees who continued to work (and contribute) in retirement and want to make new contributions in the calculation of retirement. The combination of a greater number of contributions (sometimes in amounts exceeding those used in the benefit), longer contribution and older result, the systematic calculation of the factor Social Security, retirement of greater value.

The INSS, however, has dismissed the administrative waivers on the basis of Article 181-B of Decree 3.048/99, which says that pensions are "irreversible and irrevocable." But the precedents of the Supreme Court rejected the application of the Decree on the grounds that the waiver is in the nature of law that could only be restricted by law. (SOURCE: www.stj.jus, br , REsp 310884/RS; REsp 497683/PE No, No RMS 14624/RS, consultation 25/01/2012).

The Court denied the State's request for alimony to his ex-wife and determined as well as the sharing of debts of the former couple, confirming the judgment Marau County.

The judgment of Grade 1 was granted. The decision was confirmed by TJRS.

Case

The author of the case filed in court action with separation, and sharing food from his ex-wife. The couple had been separated for two years.

On request, the ex-husband had debts to be shared with them a debt amounting to about $ 4000, due to funding to pay for a piano as a gift to the couple's daughter, as well as college tuition the young, the amount of R $ 346.00.

Sentence

The process proceeded in the District of Marau. The trial was conducted by Judge Margot Law Cristina Agostini, the 1st Court Judicial Forum Marau.

In the sentence, the magistrate granted the separation and determined that the former wife of the plaintiff should split the cost of debt financing of the piano, and bear 50% of the cost of college daughter.

Even without a lot of financial conditions, the progenitor is also responsible for the cost of the studies of the daughter, can not exempt itself from such liability, the judge said.

The ex-wife came to deny that the piano was a gift given by her father. However, the magistrate said that, being married in the regime of partial community property at the time that the financing was done, the mother should bear half the expenses.

Even though a gift from his father, the mother should be responsible for half of the payment thereof, the magistrate said.

Judge Cristina law Margot Agostini also determined that the plaintiff is not required to pay share of food for his ex-wife, because it is young (36 years), healthy and able to work.

There was an appeal of the decision by the ex-wife.

Appeal

In TJRS, the action was dismissed by the 8th Civil Court. The Judge Rapporteur Rui Portanova dismissed the appeal.

According to the magistrate, the debts incurred in the course of the marriage of his daughter to pay for studies and to acquire one common musical instrument for the girl, should be shared.

The Judge also pointed out that his ex-wife is a young person with no health problems and able to work.

The judgment of the Court of Grade 1 was confirmed unanimously. Also participating in the trial the justices Brazil Luiz Felipe Felippe Santos and Alzir Schmitz, who accompanied the vote of the Judge-Rapporteur. (Source: www.tjrs.jus.br , Appeal No. 70046156030, consulted on 25/01/2011)

The 1st Civil Chamber of the TJRS of Justice upheld the sentence of Caxias do Sul, which upheld the consumer and ordered the Rio Grande Energia S / A to provide electricity to the property you rented. To deny the new connection in the same location, the company claimed the existence of debts on behalf of the former tenant.

As Judge Luiz Felipe Silveira Difini, draftsman, the application for new connection can not be conditioned on payment of outstanding debt on behalf of a third party if the former landlord of the property. You can not deny the legitimacy and the author's interest in requiring the restoration of service by, of course, the transfer of ownership of the consumer unit to his name, he said.

The justices Irenaeus Maraschin Mariani and Jorge dos Santos accompanied the vote of the rapporteur. (Source: www.tjrs.jus.br , AC 70,045,176,179 on 02/01/2011)

By unanimous vote, the Board's Special TJRS outset declared the unconstitutionality of the Arts. 11:12 Laws of the State Supplementary numbers 13,757 and 13,758, setting the adjustment of pension rates between 11 and 14%, reducing by applying for those who receive lower wages. The action was proposed by the Attorney General's Office. The merits of the suit will be dismissed after a period of instruction.

The trial of the injunction began on 5/12 when 20 justices followed the vote of the Rapporteur, José Francisco Moesch Judge, granting the injunction, and was suspended at the request of view of the case by Judge José Genaro Baroni Borges. During the session this Monday (19/12), the Judge gave his vote Genaro also following the vote of the rapporteur.

Judge Genaro noted that the rates as fixed is confiscatory and that there is no actuarial calculation for the rates set out in law. Aliquot was taken at random, starved of consistent and reliable actuarial study said. He also said adding to the current tax already paid, the rate of 14%, we arrive at a level close to 50%, reaching standards of unbearable economic and financial, in striking disaffection to the principle of reasonableness, as it eventually by removing the taxpayer resources required to meet their basic needs, the minimum subsistence figure.

And the President of the TJ, Judge Leo Lima, awaiting the vote of Judge Genaro, also voted with the rapporteur.

For Judge Moesch, the vote cast at its meeting on 5/12, making up deductions and applying a single rate of 14%, the result in practice is the incidence of lower rates and progressive. Observed that the progressive established by different rates and bases of calculation requires express constitutional authorization.

Exemplified, according to the salary base, tax rates result in 11%, who receive up to R $ 3,691.74; 11 to 12.5% ​​from R $ 3,691.74 to R $ 7,383.48, and 14% for those receiving more than R $ 7,383.48.

The rapporteur notes that he is not saying that the social security contribution is not likely to increase. What is emphasized, he said, is that the increase of tax exaction observe standards of reasonableness and be established in moderate bases, which, in my view, not the case, since no demonstrated need for the effective increase to the percentage of 14% (...)

It noted that for the servers that join the public service after the effective date of the law, became part of the Financial Savings Scheme (FundoPrev), the social security contribution rate remained at 11%, including the state, no one study technical and actuarial justifying, forcefully, that difference in treatment pension.

  Retroactive

And a majority of 22 votes to 1, also following the vote of the Rapporteur, the Special Body considered that the declaration of unconstitutionality of the provisions concern since the enactment of the law. The Judge Aristides Pedroso de Albuquerque Neto understood that the decision would have consequences only from the trial because it is the assessment of an injunction. (Source: www.tjrs.jus.br , ADI 70045262581, 12/20/2011)

Minister Gonçalves Benedito, the Superior Court of Justice (STJ), admitted claim to verify correct implementation of the College Appeals Precedent 85/STJ the 22th Judicial Circuit of Itapetininga in Sao Paulo. This court held that the discussion on the conversion of the URV salaries of civil servants in the city is hampered by the five-year limitation period.

A Summary of the STJ 85 provides that "the relations in which the Treasury is borrowing, when you have been denied the very right claimed, the prescription reaches only payments due before five years of filing the lawsuit."

In this case, the college decided to appeal that the discussion on the conversion of values ​​in URV was impaired by prescription. The recognition of the right servers, according to local decision could jeopardize the public budget.

To the Minister Gonçalves Benedito, it seems, in fact, there is a discrepancy between the decision of the Panel and appellate case law from the Supreme Court, especially taking into account the content of an aggravation of the reportage of the Minister Humberto Martins (Ag 1.426.266/RS) , in which several are cited above on the subject.

The claim must be assessed by the First Section. (Source: Recl 7474. www.stj.jus.br , pub. 14/12/2011)

The Second Chamber of the Superior Court of Justice (STJ) upheld the conviction of the Union to pay compensation of $ 100,000 to the parents of a soldier who drowned in the barracks while military service compulsory. For the Federal Court of the 4th Region (TRF4), the Army failed to allow a group of soldiers drove up in bathing suits to the river.

The accident happened in 2005, the 12th Engineer Battalion in Alegrete (RS). In judging the actions of parents of the soldier, the judge held that there was no causal connection between military service and death. But the TRF4 said that the Union has incurred guilt by omitting to permit the passage of the soldiers in swimsuits Ubirapuitã down the river. Only after the accident were placed signs forbidding access to the site.

According to the TRF4, was double omission, signaling and supervision, which could have prevented the death. The soldiers have even gone through sentinels, without warning or alert. Also according to the TRF4, by removing the young family and social group in which was inserted for military service, the Army undertook to ensure their physical integrity.

The special feature of the Union was denied follow-up by the rapporteur, Minister Herman Benjamin, because the Supreme Court could not review the evidence in the case to eventually change the understanding of TRF4 about the circumstances of death.

However, the Union appealed the decision of the rapporteur, forcing the trial by the other ministers of the Second Class. Union for the feature intended revalorar the evidence in the file, which would authorize the appropriateness of the resource. But the ministers, in a unanimous decision, rejected the arguments.

"The lack of skillful arguments to change the grounds for the decision now becomes aggravated unscathed understanding it signed. Therefore, there is talk about repairs in the decision, "said the reporter.

"It is impossible, therefore, analyze the argument of the special appeal, which seeks to fend off the premises and facts established by the judgment," he added. For the Panel, the Union wished to actually review the facts and evidence, which is not possible in special feature.

The ministers also understood that the amount of compensation is not negligible or abusive, there is no reason to change it. (Resp 1199025, Source: www.stj.jus.br , consultation 12/12/2011).

The Justice of Rio de Janeiro sentenced a woman to compensate the ex-boyfriend cheat you by saying that he had a son with him. As the process, the couple had a relationship quickly and then the man was contacted and informed that it would be the child's father.

He then recorded the boy and began to pay a pension of $ 100 monthly. The mother hindered the interaction between the child and ex-boyfriend, who asked for a DNA test and proved a hoax.

In its defense, the woman claimed that she believed the author was the father of her child and never demanded that he recognize the smallest, he decided to voluntarily, so that did not oppose DNA testing demanded food and never having acted in good faith.

By unanimous vote, the 10th Civil Chamber of the ECJ upheld the decision-RJ in the first instance, but reduced the amount of compensation from $ 15,000 to $ 10,000. The woman's defense may appeal the decision.

According to the Rapporteur, Judge Gilberto Dutra Moreira, "the issue is not limited to the payment of food, in this case, were voluntarily reduced and fixed, but the big impact this news has on a man's life, besides the obvious emotional involvement the author with the child in a situation that has been perpetuated by at least three years. "

In conjunction, the trial acknowledged that "the damage was caused by the retention by the appellant herein, the secrecy with respect to the second relationship, secret this which caused damage not only the father but also the lowest." (Proc. No. 0222314 -02.2010.8.19.0001 - Source: www.tj-rj.gov.br , 08/12/2011).

The Judge Luis Antonio de Abreu Johnson, substitute the 2nd Criminal Court of the County Paved acquitted summarily defendant charged with drunk driving, considering there was no evidence for a conviction based on Article 397, paragraph III of the Code of Procedure Criminal.

The complaint filed by prosecutors assigned to the defendant to the crime of driving a motor vehicle on public roads under the influence of alcohol under Article 306 of the Brazilian Traffic Code, based on Statement of Evidence of intoxication drawn up by officials of the Police Station Federal Paved Road. The accused refused to be tested for etilômetro (breathalyzer).

Decision

In summary, the magistrate decided that after the amendment of art. CTB 306, operated by Law No. 11.705/2008, only the technical test (breathalyzer or blood test) is capable and able to measure the concentration of alcohol in the human body (blood alcohol content level of dosimetry - the concentration of alcohol per liter of blood less than 6 decigram), not paying for that purpose any examination (test of the movement, vital functions, stupor, excitement, among other studies) or the testimony of witnesses (visible signs of intoxication), as prosecutors sought to in the case under trial.

The magistrate concluded, therefore, be the case summary of acquittal because there can be no criminal conviction or trial and without the necessary expert assessment of drunkenness. Therefore it was decided by summary acquittal of the accused, for lack of proof of the elementary fact of the crime of drunk driving. Ultimately, determined the referral of the case Special Criminal Court of the District of Lajeado to be calculated crime of disobedience (crimes of lower offensive potential). Appeals of the sentence. (Source: www.tjrs.jus, br , Case No. 21100016670, County Paved, RS, 11/23/2011)

Judge Mauricio Duarte Alves, the 11 th of the Treasury of Porto Alegre, granted an injunction to suspend the 14% increase in the rate of pension IPERGS, keeping the current 11%. The decision was made in two lawsuits, filed by the Union of Public Employees Retirees and Pensioners (SINAPERS) and three other authors, achieving applicants.

The magistrate granted the injunction suspending the effects of Articles 11 and 12 of Complementary Law No. 13.757/11 and 13.758/11 State. Whereas, in particular, the strength of the plausibility of the arguments of unconstitutionality, even with the Direct Action of Unconstitutionality (ADI) filed by MP / RS, already distributed to the Board's Special TJRS, avoiding thus losses of both parties with any undue repetition, he pondered.

The progression was deemed unconstitutional by the judge, who said that the imposition of different tax rates and bases of calculation requires explicit constitutional authorization, it is an exception to the limits of the taxing power. He said that despite the arithmetic gymnastics performed by the above paragraphs highlight the rate of 14% and 21.43% of deducer as unique, unmistakable Exsurge progressivity since developed different formulas for the composition of different bases, escalating salaries contribution of higher, equal or below the ceiling of the RGPS.

The judge also examined the increase in rates set confiscation. He noted that the ability to pay is not limited only in discounts on payroll, once annually, pays property tax and property taxes, plus all the burden of indirect transfers of ICMS, IPI and ISS, levied on products and services. The current tax rate practiced in Brazil eliminated any possible margin of increase of tribute, because depleted of the ability of citizens, especially public servants deducted at source, he thought.

Also pointed out the need to consider the binomial: Need and Capacity Contributory System the Insured. The § 5 of Art. 195 of the Constitution provides that no benefit or service of social security can be created, increased or extended without a corresponding source of full funding. Thus, for an increased benefit it requires an increase of the values ​​of the contributions, maintaining the balance in the funding source. Correlatively, no legal provision to increase benefits, which would justify the additional contributions? He asked. (Source: www.tjrs.jus.br , Proc. 11102745791 and 11102885917)

Ended days ago in Los Angeles trial of Michael Jackson's doctor, Conrad Murray, convicted of manslaughter of the singer, after five weeks of testimony to elucidate how the death occurred of the star two years ago.

This thorough and speedy trial shows how impunity is abhorred by the Americans, despite all the criticism that can make the Anglo-Saxon system of criminal procedure.

A similar process recently completed in Brazil after nearly thirty years of suspense, resources and comings and goings in the higher courts. The result is very clear the slow process coupled with skilled Brazilian penal procedural resources and high turnover of judges leads to the prescription of offenses and consequent impunity.

(...)

Recent debates seek legislative reforms and more reforms. But one thing there is no doubt: the so-called ally the Byzantine guaranteeism criminal procedural defense strategies, in most cases, nourishes impunity.

The lessons of the judgment of the physician Michael Jackson resonate in Latin America, whose criminal procedural democracy has not reached the Brazilian courts. The popular saying "who can no longer cry less" is a reality in elegacias and prisons, in which economic power prevails ahead of the criminal justice system.

The doctrine of procedural guaranteeism concerned with the adversarial, legal defense and any final judgment, moves away from a just society in which social class differences are not decisive in the judgment. After all, we are not equal before the law (?).

The reflection of this is also felt trusteeship expressive of private property crimes, more protected, and the growing impunity of politicians and public officials about the crimes committed in detriment to the public coffers, sustained throughout society.

Ineligibility and unavailability of goods are only a small fee if you compare the criminal laws of the highly developed countries that punish in an exemplary manner its corrupt.

The Criminal Law and Criminal Procedure in Brazil has much to learn from the recent trial of Michael Jackson's doctor, regardless of the conviction that the jury of seven men and five women imputed quickly and substantiated.

For Claudio Henrique de Castro, a lawyer and law professor. Published by the District Attorney 08/11/11 , Source: http://promotordejustica.blogspot.com