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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 surrender: once canceled the old retirement should the insured to return the amounts received? Two opposing positions have emerged in the debate in the jurisprudence, an obligation by the other unnecessary.

The obligation is argued that the solidarity that informs the social security system requires the return of amounts paid to maintain system balance. This position is still prevalent in 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 the return of values ​​(Resp 1184410 of 04/13/2010). This understanding was established in the Supreme Court, as it is extracted from the exemplary menu recent ruling:

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

The main beneficiaries of this thesis are the INSS retirees who continued to work (and contribute) then retired 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 and higher contribution age result, the system for calculating the factor Social Security, retirement of greater value.

The INSS, however, has dismissed the administrative waivers based on 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 No. 497683/PE, RMS No. 14624/RS, consultation 25/01/2012).

The Court denied the state request for alimony to his ex-wife and determined as well as the sharing of debts of the former couple, confirming the sentence handed down in the County of Marau.

The Judgement of the Grade 1 was granted. The decision was confirmed by TJRS.

Case

The author joined the Justice of the process of separation with action, 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, and they are 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 Cristina Agostini, the 1st Circuit 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 many financial condition, is also the progenitor for the cost of the studies of daughter, can not exempt itself from such liability, the judge said.

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

Even as a present from her 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 the decision by the ex-wife.

Appeal

In TJRS, the action was dismissed by the Civil Chamber 8. The rapporteur Rui Portanova Judge 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 award of the Judgement of the Grade 1 was confirmed unanimously. Also participating in the trial, the justices Brazil Santos and Luiz Felipe Felippe Alzir Schmitz, who accompanied the vote of the Judge-Rapporteur. (Source: www.tjrs.jus.br , Appeal No. 70046156030, consulted on 01/25/2011)

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 supply 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 defined to Judge Luiz Felipe Silveira, Rapporteur, the request for a new connection can not be conditioned on payment of outstanding debt on behalf of a third party if the former landlord of the property. No one can deny the legitimacy and the author's interest to require 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 George Santos of the vote followed by the rapporteur. (Source: www.tjrs.jus.br , AC 70045176179 on 01/02/2011)

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

The trial began in the injunction 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 Genaro Baroni José Borges. During the session this Monday (19/12), the Judge gave his vote Genaro also following the vote of the rapporteur.

Genaro Judge observed that the tax rates as confiscatory and has determined that there is no actuarial calculation for rates set by law. Aliquot was taken randomly, from lack of consistent and reliable actuarial study said. He also said adding to the existing taxes 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 Moesch Judge, delivered the vote 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. He observed that the progressive imposed by different tax 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, from 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 increased 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% (...)

He noted that for the servers that join the public service after the effective date of the law, joining the capitalization financial system (FundoPrev), the social security contribution rate remained at 11%, including the state, without a study technical and actuarial to justify, so compelling, that difference in treatment welfare.

  Retroactive effect

And by 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 promulgation 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 appreciation of an injunction. (Source: www.tjrs.jus.br , ADI 70045262581, 12/20/2011)

Minister Gonçalves Benedict, the Superior Court of Justice (STJ), admitted claim to verify correct application of the College Appeals 85/STJ Summary of the 22nd Judicial Circuit of Itapetininga in Sao Paulo. This court held that the discussion of the conversion URV salaries of civil servants of the city is hindered by the five-year prescription.

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

In this case, the college decided that the appellate discussion of 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, be no difference between the decision of the appellate Class and the jurisprudence of the Supreme Court, particularly taking into account the content of a bill of reportage of the Minister Humberto Martins (Ag 1.426.266/RS) , which are cited numerous precedents on the subject.

The claim must be assessed by the First Section. (Source: Reclam 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 soldiers 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 military men in bathing suits drove 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 ruled 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 toward the river. Only after the accident were posted signs prohibiting 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 assumed the obligation 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 EU appealed the decision of the rapporteur, forcing the trial by the other ministers of the Second Class. For the Union, the intended use reevaluates the evidence before the Court, authorizing the pertinence of the resource. But the ministers, in a unanimous decision, rejected the arguments.

"The lack of skilled arguments to change the grounds for the decision now becomes aggravated unscathed understanding it signed. Therefore, there is talk about the repair decision, "said the rapporteur.

"It is impossible, therefore, to examine the thesis of the special appeal, which seeks to dispel the factual assumptions set by the judgment," he added. For the Panel, the Union wished to actually review the facts and evidence, which is not possible in special appeal.

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 to indemnify against a woman's ex-boyfriend cheat you by saying that he had a son with him. According to the suit, the couple had a relationship quickly and then the man was searched and told to be the father of the child.

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 he believed the author was the father of her child and never demanded that he recognize the slightest, he decided to voluntarily, so that did not oppose the DNA test 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 has on the life story of a man, beyond 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, this secret that 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 District of Lajeado acquitted summarily defendant charged with drunk driving, considering there was no evidence for a conviction, based on Article 397, section III of the Code of Criminal.

The complaint filed by prosecutors assigned to the defendant to the crime of driving a motor vehicle on a public road under the influence of alcohol under Article 306 of the Brazilian Traffic Code, based on Statement of Evidence of intoxication drawn up by agents of the Police Station Federal Paved Road. The defendant refused to perform the test etilômetro (breath test).

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 (breath or blood test) is capable and able to measure the concentration of alcohol in the human body (blood alcohol level dosimetry - the concentration of alcohol per liter of blood less than 6 decigram), not paying for such purpose any examination (test of the motor, vital signs, stupor, excitement, among other studies) or the testimony of witnesses (visible signs of intoxication), as prosecutors sought to in the case on trial.

The magistrate concluded, therefore, be the event of acquittal because there can be no criminal conviction or trial and without the necessary expert assessment of drunkenness. Therefore it was decided by the acquittal of the accused, without proof of a circumstance element of the crime of drunk driving. In the end, deciding to send the file Special Criminal Court of the District of Lajeado to be calculated crime of disobedience (crimes of lower offensive potential). Appeal the sentence. (Source: www.tjrs.jus, br , Case No. 21100016670, Paved County, 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 judge 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 of undue repetition, he pondered.

Progressivity was ruled unconstitutional by the judge, who said that the establishment of different rates and bases of calculation requires explicit constitutional authorization, it is an exception to the limits of the taxing power. He said that although the gym arithmetic performed by these sections to highlight the rate of 14% and 21.43% of deducer as unique, unmistakable Exsurge progressivity, since different formulas designed for the composition of different bases, escalating salaries contribution of higher, equal or inferior to the RGPS ceiling.

The judge also reviewed the rate increases set confiscation. He noted that the ability to pay is not limited only for discounts on payroll, as every year, you pay property tax and automobile taxes, and all the burden of indirect transfers of ICMS, IPI and ISS, levied on products and services. The present tax rates practiced in Brazil eliminated any possible margin of increase in taxes because of the ability of exhausted people, especially public servants deducted at source, he thought.

Also pointed out the need to consider the binomial: Need Contributory System Capacity and the Insured. The § 5 of art. 195 of the Constitution provides that no benefits or services of social security can be created, increased or extended without a corresponding source of full funding. Therefore, for an increase in benefits requires a rise in values ​​of the contributions, keeping the balance in the source of funding. Correspondingly, 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 for the singer, after five weeks of testimony to elucidate how the star's death occurred two years ago.

This thorough and speedy trial demonstrates how impunity is abhorred by the Americans, despite all the criticisms that can be made to 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 slowness of the criminal justice process coupled with skilled resources procedures and the high turnover of judges leads to the prescription of offenses and the consequent impunity.

(...)

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

The lessons of the trial of Michael Jackson's doctor resonate in Latin America, whose criminal procedural democracy has not reached the Brazilian courts. The adage "those 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, concerned with the guarantor of the contradictory and full defense of any final decision, withdraws from a just society in which social class differences are not decisive in the trial. After all, we are not equal before the law (?).

The reflection of this makes itself felt expressive of protection of private property crimes, more secure, and 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 return compared to the penal laws of the highly developed countries that punish in an exemplary way 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 grounded.

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