PENSÃO POR MORTE AO MENOR SOB GUARDA FRENTE À ALTERAÇÃO DO ART.16, § 2º DA LEI Nº 8.213/1991

Abstract

The purpose of this article is to analyze the exclusion of the child under the care of dependents of the social security insured, regulated by Law 9.528 / 1997, which originated a new wording to article 16, § 2 of Social Security Law 8.213 / 1991. The aforementioned amendment was made with the purpose of avoiding fraud to the social security system, it occurs that the legislation that preceded the present reform is in agreement with the provision 33 § 3 of the Statute of the Child and Adolescent (Law 8.069/90), which expresses that the minor under guard is dependent even for social security purposes, in the case in question of his guardian. Nevertheless, the Social Security Law is opposed to the principle of the integral protection of the child and the adolescent protected by the legal order, namely, the Brazilian Federal Constitution of 1988. Before this exclusion the minor under guard search the judicial process so that they receive the pension for death resulting from the death of his guardian, but the understandings of the Superior Courts diverge between their decisions. Finally, the discussion of the present theme is suggested so that they deserve due attention, given their constitutional origin, under penalty of once again in their history they cease to be seen as facts of law subjects and deserving of the conquests by them achieved.