The Pension Fund as an additional labour and pension instrument for promoting social inclusion in the Democratic Rule-of-Law State
| Autor | Érica Fernandes Teixeira |
| Ocupação do Autor | Doctor and Master in Law from the Pontifical Catholic University of Minas Gerais |
| Páginas | 1443-1459 |
Special Workshop: Democracy, Social Justice and Labor • 1443
The Pension Fund as an additional labour
and pension instrument for promoting social
inclusion in the Democratic Rule-of-Law State1
Érica Fernandes Teixeira2
1. Initial Comments
Private pensions were institutionalised in Brazil during the mil-
itary regime, under the government of Pres. Ernesto Geisel, with the
enactment of Law No. 6,435, in July 1977. After this initial milestone,
the market for private pensions was very much expanded, and these
activities started to be controlled and governed by the State. Before that,
the institutions operated without any kind of state control, operating
inisolationThePrivatePensionSystemwasthusociallyborninour
countrywithprovisionsbeingmadeseingatimeframefortheregula-
tion of the existing institutions.
In the terms of Article 4 of Law No. 6,435 of 19773, Private Pen-
sions were divided into open pension institutions and closed entities,
depending on the institutions’ relationship to the respective partici-
pants. The closed institutions of private pensions have been given the
name of Pension Funds. Originally, these were exclusively for the use of
the employees of a given company or group of companies, known as
sponsors. The other institutions fell within the category of open pension
institutionsDecreeNoofdenedtheaforesaidclosed
entities, in its Article 1.
Since their creation, the open pension institutions have always
oeredindividualpensionplansmadeavailabletoanyoneHoweveras
mentioned in Article 26 of Complementary Law 109 of 29/05/2001, they
alsooeredgroupplansseekingtooerpensionbenetstoindividual
1
TEIXEIRA, Érica Fernandes.
2
Doctor and Master in Law from the Pontical Catholic University of Minas Gerais;
Professor of Law and Labour Lawsuits (IEC/ PUC/MG). Professor at the University of
Brasília (UnB). Solicitor.
3
Repealed by Complementary Law No. 109, of 29.5.2001.
1444 • XXVI World Congress of Philosophy of Law and Social Philosophy
people who are directly or indirectly linked to a hiring Corporation.
The benchmark of evolution of complementary pensions was
established after Constitutional Amendment No.20, of 1998, which in-
cluded the private pension regime within the social order chapter of the
Constitution of the Federative Republic of Brazil. In Brazil, this private
regime became part of the pension system, as a complement to own re-
gimes and the general pension system.
Constitutional Amendment No. 20/1998 changed the wording of
Article 202 of the Federal Constitution as passed in 1988. The scope of
the constitutional regulation laid bare the relevance of the issue, and
also showed the main guiding principles behind Private Pensions, also
bringing them under state control. For this reason:
even though there is contractual freedom in the private pension
system, the constitutional accessory side ends up subjecting the
private model (impregnated by the judicial institutes of Private
Law) to the forecasts and changes as enforced by the Government.4
This regulation, as set out in the header of the previously men-
tioned Article 202 of the Federal Constitution, was implemented by
Complementary Law No. 109, while the regulation of Paragraphs 3 to
6 was the object of Complementary Law No. 108, with both these Com-
plementary Laws having been passed into law on 29/05/2001, thereby
repealing Law No. 6,435/77.Article 31 of Complementary Law 109/2001
makesthefollowingdenition
Article 31. Closed institutions are those which, in the manner set
out by the regulatory body and inspection organisation, are avail-
able exclusively:
I –to the employees of a certain company or group of companies,
and for servers of the Federal Government, States and Municipali-
tiesasalsooftheFederalDistrictthese beinginstitutionsknown
as sponsors;
II – to associations or members of professional, class or sectorial
institutions, known as institutors.
According to the teachings of Wladimir Novaes Martinez, “The
main characteristics of Complementary Pensions, as listed below,
allow us to establish the essence and the scope of such pensions,
4
WEINTRAUB, Arthur Bragança de Vasconcellos. Previdência Privada:doutrina e juris-
prudência. [Private Pensions: Doctrine and Jurisprudence]. São Paulo: Quartier Latin,
2005, page 75.
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