A tipicidade do contrato de previdência complementar aberta e o regime jurídico conferido ao patrimônio formado com base nas contribuições e realizadas pelos participantes

Abstract

Private pension was only systematized within the Brazilian legal system in 1977, with the advent of Law n. 6.435. In 1998, through the 20th Constitutional Amendment, this private pension also became covered in article CR/1988. Due to this provision in article 202 of CR/1988, the Complementary Law n. 109/2001 was published and came to regulate this private pension. Although this legislation is not so recent, in view of existing doctrinal divergence and in-depth systematic studies, the need exists to define whether the agreement entered into between the open supplementary pension entity and the participants of the benefit plans is a typical, conventional contract. There is also the need to delimit the boundaries of the judicial regulations conferred on the formed patrimony, based on the contributions made by the involved parties. In order to do so, it was necessary to conduct a bibliographical research and a descriptive, exploratory and explanatory investigation, in order to understand how the institute of private pension and social security emerged within the Brazilian legal system, and to address how it can be contextualized within the national pension and financial systems, and the manner in which The State should intervene in the segment and in the relationship established between the open private pension entity and the participants. Furthermore, this research also addresses to describe what pension plans are, their different types and classifications and what are the duties that the pension entity must fulfill in the performance of its activities. What follows is then a presentation of the formal, objective and subjective aspects of the open supplementary pension contract and a comparison with other contracts with which it is similar. In view of the verifications carried out within this work, the nature of the open supplementary pension contract is asserted. A thorough analysis is conducted of the legal status of the formed assets, based on the contributions made by the participants of this same benefit plan and to whom its ownership belongs. Furthermore, it is established that the patrimony in question is a type of affectation asset, which has its own specific end purpose, and that for this reason, it should be used only to satisfy the benefits assumed by the open supplementary pension entity before the participants. Finally, it is clarified that this equity belongs to the open supplementary pension entity, except in cases where the contracts are linked to PGBL plans, during their deferral period. In this specific situation the assets belong to the collective participants of the plan. Based on this analysis, it is also possible to define the contributions and the rights of the participants to receive benefits and to exercise redemption and portability. Likewise, it allows one to establish the situations under which the amounts received by the participants and the amounts provisioned in their 14 favor may or may not be pledged for the satisfaction of any personal debt. And lastly, it also establishes the treatment to be conferred on them by virtue of the decree of extrajudicial liquidation or bankruptcy of the open supplementary pension entity (entitlement to credit or restitution) and that the rights assigned to them and amounts of money to be paid, are not to be inventoried on the occasion of one's death, nor transferred to one’s heirs by succession causa mortis.