Notícias » Não é possível inviabilizar o pedido de concessão do benefício previdenciário ou de seu restabelecimento em razão do transcurso de quaisquer lapsos temporais - seja decadencial ou prescricional.
Death pension. Paradigm shift. ADI 6,096/DF - STF. Statute of limitations for reviewing the act of denial, cancellation or termination of a social security benefit. Article 24 of Law No. 13,846/2019, which amended Article 103 of Law No. 8,213/1991. Unconstitutionality. Precedent 85/STJ. Highlight: It is not possible to render the request for the granting of a social security benefit or its reinstatement unfeasible due to the passage of any time period - whether statute of limitations or prescription. Full Text Information: In the original case, this is an action filed against the INSS (National Institute of Social Security) seeking payment of overdue installments of the death pension benefit established by the plaintiff's mother, retroactively to the date of death.
The Brazilian Supreme Federal Court, in judging RE 626.489/SE, under the rapporteurship of the eminent Minister Roberto Barroso, decided on October 16, 2013, with general repercussion, Theme 313/STF, established the understanding that there is no statute of limitations for the initial granting of social security benefits and, furthermore, the ten-year statute of limitations applies to the review of benefits granted, including those prior to the enactment of Provisional Measure No. 1,523/1997, in which case the counting of the term should begin on August 1, 1997.
The Supreme Court stated that the creation of a maximum term for the interested party to request the review of social security benefits does not violate the 1988 Constitution; that is, Provisional Measure No. 1.523-9/1997, in creating the statute of limitations, did not incur unconstitutionality.
This statute of limitations is based on the principle of legal certainty and aims to prevent the perpetuation of litigation, as well as seeking financial and actuarial balance for the social security system.
Subsequently, Provisional Measure No. 871/2019, of January 18, 2019 (converted into Law No. 13,846/2019), amended the wording of Article 103 of Law No. 8,213/1991 to expand the cases subject to the statute of limitations, namely: review of the granting act; denial, cancellation or termination of the social security benefit; and the act of granting, denying or not granting a review of a social security benefit.
The Supreme Federal Court, by a narrow majority, in ADI 6,096/DF, under the rapporteurship of the eminent Minister Edison Fachin, in the session of October 13, 2020, partially granted the request, declaring the unconstitutionality of Article 103 of Law No. 8,213/1991. Article 24 of Law No. 13,846/2019, in the part that amended Article 103 of Law No. 8,213/1991, is applicable because the administrative decision that denies the request for granting, or that cancels or terminates the previously granted benefit, negates the benefit itself, so that, since the beneficiary or insured party cannot re-litigate the denial, the extended statute of limitations also affects the substantive right to the granting of the benefit.
The Supreme Court understood that the Social Security Law is unconstitutional because it does not preserve the fundamental right, considering that, in the event that the benefit is denied, if the passage of time makes it impossible to re-discuss the denial, the exercise of the substantive right to obtain it is compromised.
It is important to emphasize that the First Section of this esteemed Superior Court of Justice, in the judgment of the EDcl in EREsp 1.269.726/MG, under the rapporteurship of Minister Manoel Erhardt, clarified the understanding that, in cases where the initial granting of a social security benefit is sought, in the absence of an express and formal denial by the Administration, there is no statute of limitations on the fundamental right, under the terms of Article 1 of Decree-Law No. 20,910/1932, since the obligation is of a continuous nature, according to the interpretation established in Precedent 85 of the Superior Court of Justice (STJ). However, a different situation arises when an administrative request for a survivor's pension is denied, because in such situations, the interested party must submit the claim to the Judiciary within 5 (five) years from the denial, under penalty of being extinguished by prescription.
In light of the Supreme Federal Court's decision in ADI 6.096/DF, it is not possible to invalidate the request for the granting (or reinstatement) of the benefit itself due to the passage of any time periods – whether forfeiture or prescription – so that prescription is limited only to past installments due in the five-year period preceding the filing of the action, in accordance with Precedent 85/STJ.
The understanding established by this Superior Court in the EDcl in EREsp 1.269.726/MG is superseded, considering that Article 102, § 2, of the 1988 Federal Constitution confers binding effect to final decisions in ADI proceedings in relation to other bodies of the Judiciary and the direct and indirect public administration at the federal, state, and municipal levels
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