A constituição, o direito adquirido e a contribuição social (previdenciária) dos servidores públicos inativos

Abstract

Investigates the possibility of acquired rights against the Constitution, the last understood as the product of the constituent power and as the product of the reformer power. The research analyses both the level of the abstract and general norms, and the concrete and individual level of the judgemet of the ADI 3105-DF, which object was the art. 4º of the constitutional amendment 041/2003, known as the second social welfare reform, and that subjected inactive public functionaries, already retired before its validity begin, to the duty of paying social security fund contribution. This problem can be synthetized in the following question: is the caput of the art. 4º of the constitutional amendment 041/2003 compatible with the inc. XXXVI of the art. 5º and also with the inc. IV, § 4º, of the art. 60, both of the Federal Constitution? To solve this puzzle, uses Semiotical and Logical tools. Studies, in this sequence, the chronological conflict between juridical norms, the possible substantial content of the acquired rights, and its guarantee. Concludes that: a) the norm´s conflict is real when there is antecedent´s identity and consequent´s incompatibility; b) the contribution immunity can be the object of an acquired right, therefore prohibiting the incidence of social security fund contribution on the salaries of inactive public functionaries, retired under the validity of constitutional amendment 020/1998; c) the acquired right guarantee norm is a rule (not a principle) which protects its integrity against the incidence of later law´s or constitutional amendment´s norms; d) all that considered, it is possible to convey that acquired rights should prevail against later constitutional norms, as long as these constitutional norms arise from the reformer power, not of the constituent power; e) the caput of the art. 4º of the constitutional amendment 041/2003, that imposes a contribution against which its contributors have immunity, immunity object of acquired right, is unconstitutional due to its incompatibility with the inc. XXXVI, art. 5º, and with inc. IV, § 4º, art. 60, both of the Federal Constitution.