A insegurança jurídica na (des)qualificação do pequeno agricultor como segurado especial

Abstract

This work refers to the farmer and his relationship with the Brazilian Social Security – the special insured - who produces in a family or individual economy regime, in an area not exceeding four fiscal modules. The research involved judgments of the Federal Court of the 4th Region, which covers the states of Paraná, Santa Catarina and Rio Grande do Sul, between the years 2017 and 2021; that result from the entry of lawsuits motivated by the non-conformity before the negative given by the National Institute of Social Security (INSS) when requested some social security benefit, moment that the entity verifies whether the evidence allows to conclude by the characterization (or not) of the producer as special insured. In the decisions collected, the thesis that the small owner is not entitled to retirement and other social security benefits when his production is high and with high income prevails, a fact that would mischaracterize the necessary condition of special insured for the perceived benefit. The vast majority of rapporteurs on the selected decisions are adept to mischaracterization, with two opposing and sixteen in favor. The officialization of the non-insured condition happens when some social security benefit is requested, mainly on the retirement by age or when invalid (disability benefits). These are personal situations that can be irreversible or difficult to solve because they involve the productive past, which is posthumously verified. For the analysis, the types of rural producers, insured and beneficiaries were identified and how they are linked. Based on the methods of legal interpretation, mainly the logical (systematic, historical and teleological) and logical-deductive, using the legislation, the legal doctrine and other literature, the legal suitability of the cause of mischaracterization was analyzed. In response to the study's question, how legal uncertainty affects the small holder's (dis)qualification as a special insured person, having as its cause of the high production on the small property, it was verified that it is unaffordable for confronting the social security legal system and other standards affecting this productive segment. The presence of legal uncertainty for these producers regarding the guarantees of coverage by social security was found. Negative repercussions were pointed out when reversal is impossible, it being necessary to overcome insecurity by legal means or by the Judiciary, in the sense that the understanding is not supported in our legal system; or else, on the contrary, it is effectively regulated in order to provide that the special insured person can plan his or her future with due legal security, being sure that he is under social security protection.