FGTS, origem, natureza jurídica, finalidade e prescrição

Abstract

The practice of practicing law labor for years led us to reflect on the "uniformity" of the understanding and judgments of justices of work about certain situations and conditions, perhaps due to the large number of demands, leaving us, lawyers, combat this practice on behalf of our clients. Surely it is more convenient to have the matter judgmental "standardized" and not talking on precedent even the binding. The process applied to labor law has no code to be followed, the judge goes up under the positive law especially anachronistic Consolidation of Labor Laws, and compared the common law, but should not forget the experience and the magistrate, and uses customs, unfortunately in practice positivization extreme or splinting of decisions has led the judiciary worker practicing injustice. One of these injustices, we discussed with Professor Claudia Joseph Abud is about prescription parcels FGTS, which simply consign the judges in their judgments - "prescription as FGTS is thirty years" ... Thus after long discussion and research we chose our monograph on the subject: FGTS, Origin, Nature and Legal Prescription, which we will explain: The principle of the Guarantee Fund For Weather Service today consists of a reservation in favor of the employee, who can perform the service at the time of his discharge without cause, or before other cases provided by law. One goal was FGTS increase government investments in home ownership programs through the Housing Financial System (SFH). The compensation for length of service was a guarantee provided in the ancient text of the Consolidation of Labor Laws - CLT 1943. She worked in the following way: the employee who was hired for an indefinite period after the computation of the first contract year, completing ten years of service with the same employer acquired decennial stability, which consisted of a legal protection of their employment. Little is discussed and research about the real reasons for the origin of Law FGTS, but without going into ideological discussions we concluded that it was not all bad for the workers, who were summarily dismissed before acquire stability, but it was certainly very good for employers, in addition to stability decennial should compensate those fired in order of salary per year worked or fraction less than six months, while with the advent of FGTS addition, there were only 10% (ten percent) on the balance filed, much less the rule Hired Under Employment Laws, that with the promulgation of the Constitution of 1988 increased to 40% (forty percent). Jurisprudential analysis, doctrinal and jurisprudential positions, we can understand that the "legal dogma" disbanded and legal Guarantee Fund for Time of Service, our view is the tax that is gender, kind of tax, fee, contribution of improvement and compulsory loan, the latter which converges with the Fund because it is "plucked" the worker compulsorily deposited in a fund managed by CEF and in certain circumstances the back pocket of the worker eaten away by inflation, as monetary correction suffers much less than more modest application against inflationary loss. Well who really certain situations back plus percentage. Pacific that FGTS is a social right, so that was inserted in the list of the rights of urban and rural workers provided for in art. 7, of the Constitution. One can not deny that the FGTS deposits resulting directly from the employment relationship, why is labor institute. Therefore, we have for the worker, the legal FGTS salary is deferred because the worker can only take advantage of the amount deposited into your escrow account in certain situations previously established by law (currently at art. 20 of Law 8036/90). We quote below the menus that mirrors the Supreme Court decision on the legal FGTS: Guarantee Fund for Length of Service (FGTS). Collection action (execution). Prescription of pretension. Contribution strictly social character without tax. Inapplicability the kind of art. 174 of CTN fixing in five years the period for collection of tax credit. And provided extraordinary resource known to exclude the statement of limitation (STF, RE 114424-1-SP, Sidney Sanches). The nature of the contribution due to FGTS was defined by the Supreme Court in RE 100 249 - RTJ 136/981. In this trial was emphasized his order strictly social worker protection by applying to him, as to prescription, resulting thirty years term of art. 144 of LOPS (STF, RE 117986-4 SP, Ilmar Galvao, Ac. 1st T.) In practical terms, if the postulation in judgment refers to FGTS on wages paid (money uncontroversial), within the period of two years, one can discuss the budget until thirty years retroactive. There is talk under § 1 of Article 11 of the Labor Code, as there is prescription only for declaratory actions, with the aim of registration time with the INSS, not condemnation postulates. If the postulation FGTS has the character of ancillary funding applies to the full provisions of the XXIX, Article 7 of CF/88. We must be attentive to the quality of the judicial order, if funds accessory applies to five-year limitation period, if principal, observed the biennium limitation for bringing prescription is thirty years