Constitucionalidade do ativismo judicial das decisões do Superior Tribunal de Justiça na concretização da desaposentação

Abstract

The desaposentação is an institute that resulted from a significant contingent of hand work that has returned or remained working which has required innovative responses in the Brazilian legal system. Decisions related to it shape up as judicial activism because they are given by the interference of the courts. The dissertation aims to study the desaposentação as an activist decision of the Superior Court of Justice finding that the trial within the context of the enactment of the 1988 Constitution, which symbolized a time of radical change in the way it was designed the constitutional exercise in Brazil. It analyzes the historical development of the concept of judicial activism from the jurisprudence of the US Supreme Court in dialogue and demonstrating the mechanisms drivers of judicial activism in Brazil. As well as the struggles that are established around the senses built on the concept of desaposentação such as the lack of authorizing legislation, resources and the possibility of an actuarial deficit of the pension system. It is considered the desaposentação under arguments of constitutional order embodied by the judiciary from the existence of a democratic society. The theoretical framework is guided in a judicial activism in place of public policy for the Legislature or executive by the judiciary (BAUM, 1987) to be searched with relevance in the set of ethical values that make up the best possible legal practice in the community (DWORKIN, 2011). The source are evaluated, judicial activism concepts and desaposentação, as well as parliamentary practices (draft law) and judicial (jurisprudence). It is found that the resulting desaposentação you really require social protection, as a thesis confirmed by the Supreme Court is a proactive role of the Court, under the theoretical contributions of the Contemporary Constitutionalism.