A retenção na fonte como obrigação instrumental previdenciária

Abstract

The withholding at source, usually qualified as substitution form, has been widely used in the social security expenditure, allowing the simplification and greater efficiency in the collection. In this direction, It is welcome since it s allows to increase resources for a more efficient social protection. However, the institute has scarce doctrinal development, and therefore the error in characterizing it as substitution form still remains. From premises after-positivists and of the dual theory of the obligation, the text displays the real nature of the retention, as species of instrumental obligation, inadequately known as accessory obligation. The responsibility of the retainer only appears as sanction for the breach of the duty to hold back and to repass the values which had, in contrast of the substitution, that establishes, since the occurrence of the fact, that someone else is the passive subject of the relation. Such differentiation has important consequences, as the legal order to be applied and even the correct regimen of restitutions, exemptions and even immunities. Also, the instrumental obligations must be foreseen in law, but without the necessity of fullness normative in this legislative vehicle, being able the Administration to establish detailed and reasonable norms else where, in a material vision of the legal security