A (in)constitucionalidade do art. 19-e do regulamento da previdência social ante os limites do poder regulamentar

Abstract

This study aims to analyze the validity of article 19-E of Decree No. 3048/99, which regulated article 195, §14 of the Federal Constitution, establishing a minimum contribution limit for counting the contribution time of the beneficiaries of the General Social Security System. The mentioned analysis is based on the limits of the Regulatory Power of the Public Administration to issue decrees for the faithful execution of laws. Additionally, the study sought to examine the validity parameter of the device in order to determine the legal mechanisms available to challenge it judicially. For this purpose, a deductive approach was used, with comparative and historical procedural methods, and bibliographic and documentary techniques were employed in the field of research. The work was structured into four chapters, corresponding to specific objectives: a) examine the principle of the separation of powers; b) verify the foundation and limits of the Regulatory Power; c) understand Social Security and Social Welfare, their functions, and principles; and d) analyze the provisions of article 19-E of Decree No. 3048/99 in relation to what is foreseen in article 195, §14 of the Federal Constitution, through a comparison of the institutes covered in both devices, as well as to verify the judicial mechanism that allows its expulsion from the legal system if tainted with a defect. Thus, it was possible to understand that the questioned device exceeds the limits available to the Regulatory Power, so that the public administrator is exercising a legislative function that does not belong to them. It is also concluded that article 19-E regulates a constitutional, not legal, provision, and is therefore unconstitutional, allowing for constitutional review, either incidentally or through a Direct Action of Unconstitutionality.