Direito social - Aposentadoria: diferença ontologica entre aposentadoria por tempo de serviço e aposentadoria por tempo de contribuição

Abstract

The purpose of this work is to analyze the ontological difference between the working time retirement and contribution time retirement, in the Brazilian general social security system, from the evolution of the rights. The contribution time retirement is a legal institute relatively new in the Brazilian legal system, since it has been created through the Constitutional Amendment 20/1998, replacing the working time retirement, having as main factor determining the legislative renovation of a legal institute, replacing it with another one, the decrease of the mortality and birth rate, with the consequent increase of the Brazilian s life expectancy and the increase of work in the informal market. For the effective clarification of the matter, we will analyze the social protection of the working time retirement and the difference in relation to the contribution time retirement, passing through the theory of rights evolution, describing the theory of social rights, of the social security as a right, of the social security history in the prior Constitutions and of the international models and foreign systems of social security. Initially, we analyzed the evolution of the rights from the Declaration of Human Rights as one of the ways for achieving social justice. Thereafter, we show the social rights that arise from the social constitutionalism, which establish the set of rights and principles of the social nature formally inserted in the Brazilian Constitution of 1988. Subsequently, we aimed at analyzing the social security as a right, the purpose of which is to search for the well-being and the social justice. After, we approached the brief history of the social security in the prior Constitutions and, finally, treated of the ontological difference between working time retirement and the contribution time retirement as social protection object, since the social security system must take other focus in the society s point of view, the elimination of poverty, which may cause the creation of social programs that allow to take workers away from the informal market, encouraging the companies to hire them with official employment registration and, accordingly, reducing the unemployment levels. With this work, we attempted to demonstrate that, despite the discussion of whether being or not a social contingency, the contribution time retirement is a social protection ensured by the Constitution of 1988