Legal certainty and res judicata: brief comments on the judgment of the “whole life” review

Abstract

The whole life review corresponds to a legal thesis designed with the aim of allowing certain social security general regime beneficiary to opt for a more advantageous calculation rule for their benefit. Since there is no support in law, the Brazillian Supreme Court was called upon to decide on the issue in terms of constitutional judicial review, deciding to validate the thesis, at least initially. By judging other actions with potential prejudice to what had been decided, there was an apparent setback in the understanding, in which the previously observed panorama was changed and, consequently, its invalidity was declared. From this scenario, the following question was formulated: did the Federal Supreme Court meet the postulates of legal certainty, res judicata and protection of legitimate expectations required by the system of precedents? To this end, several methodological contributions were used, adopting legal-comprehensive and historical-legal methodologies, in addition to a legal-prospective aspect. The research method chosen was bibliographic and documentary, with an exploratory and descriptive research, in the aim of providing a general and close view of the movement observed in the case of the whole life review, delimiting a new vision of the problem based on the analysis of possible prognoses. Thus, it was possible to identify that there had been an injury to legal certainty and the protection of legitimate expectations, through a judicial procedure that did not consider the participation of social security beneficiaries interested in the whole life review and failed to comply with fundamental postulates of the system of judicial precedents. The possible solution, however, would lie in the reestablishment of the previous understanding in the context of the judgment of motions for clarification.