RETIREMENT IN TIME AND CONVERSION OF SPECIAL CONTRIBUTION PERIOD,

And Indemnity OF FUND IN DELAY

EXCELLENCY DR FEDERAL JUDGE OF SOCIAL SECURITY STICK ___ JUDICIAL SECTION OF SO P
AULO / SP.
Name, nationality, marital status, occupation, bearer of Identity Card. XX.XXX.X
X X, SSP / SP, duly enrolled with the CPF / MF-XX XXX.XXX.XXX, resident and domi
ciled at Rua XXXXXXX, No. XX, Neighborhood, City, State, his attorney agrees tha
t this instrument Mandate included (doc. 1) with the office XXXXXXXXXX Street, N
o. XX, Neighborhood, City, State, address it receives subpoenas, comes to the pr
esence of Your Excellency to propose

ACTION TO PROVIDE RETIREMENT IN TIME OF SERVICE AND CONVERSION OF THE SPECIAL PE
RIOD, AND IN DELAY OF FUND indemnity, in the face of
INSS NATIONAL INSTITUTE OF SOCIAL INSURANCE, Agency of So Paulo - So Paulo, Rua Xa
vier headquartered in Toledo, n. 280 - Centro - So Paulo - Sao Paulo, Cep: 01048-
000, in the person of its legal representative, for the following reasons in fac
t and law.
1 - THE PRELIMINARY JUDICIAL GRATUITY
Before any demonstration about the action, the author requires the granting of t
he benefits of free legal assistance, since not afford to bear the costs of the
proceedings, without jeopardizing your own needs and those of their families, as
attached document.
Thus, under the provisions of sections and LXXIV XXXV of Article 5. the Federal
Constitution, Article 2, unique and Article 4 of Law No. 1,060 / 50, requires th
e approval of the court granting gratuity benefits.
2 - THE FACTS
The Author applied administratively, your retirement for years of service on the
date of 22/10/2002 under No. 42 / XXX.XXX.XXX-X, with the local authority / R. O
n the date of the application filed all documents required for proof of his serv
ice, as included copies.
The service time of the author consists PERIODS AND SPECIAL comums
Special periods are laborados for the following companies:
A) XXXXXXXXXXXXXXX - 04/15/1971 16/10/1975 WILL, AS SPECIAL ACTIVITY REPORT 8030
AND DSS PROVIDED BY THE COMPANY; (RECOGNIZED BY INSS).
B) XXXXXXXXXXXXXXX - 12/01/1976 05/13/1977 WILL, AS REPORT AND DSS 8030 OFFERED
BY EMPLOYER, SPECIAL ACTIVITY - RECOGNIZED BY INSS.
C) XXXXXXXXXXXXX, 31/05/1977 14/03/1980 AS REPORT AND DSS PROVIDED BY EMPLOYER 8
030; NOT RECOGNIZED.
D) XXXXXXXXXXXXX - 01/10/1980 01/05/1981 WILL, AS REPORT AND DSS PROVIDED BY EMP
LOYER 8030; NOT RECOGNIZED.
E) XXXXXXX S / A - 26/08/1981 15/05/1984 WILL, AS REPORT AND DSS PROVIDED BY EMP
LOYER 8030; RECOGNIZED BY INSS.
F) XXXXXXXXXXXX S / A - 16/01/1985 29/05/1989 WILL, AS REPORT AND DSS PROVIDED B
Y EMPLOYER 8030;
G) XXXXXXXXXXXXXXXX S / A 02/10/1989 29/01/1992 WILL, AS REPORT AND DSS PROVIDED
BY EMPLOYER 8030; NOT RECOGNIZED.
H) XXXXXXXXXXXXXX S / A - 17/09/1998 01/09/192 ; REPORT AS E DSS 8030 OFFERED BY
EMPLOYER. NOT RECOGNIZED
As the figures, the total period worked by the author is 25 years, 05 months and
16 days, recognized by actual count of the INSS.
3 - THE YEAR SPECIAL
The periods considered special and are recognized by Social Security:
A) will 04/15/1971 16/10/1975; recognized by Social Security; and
B) 26/08/1981 15/05/1984 will, with noise exposure.
The decision rejecting the grant of special pension of the author, it appealed t
o the resources section, and opinion 16/05/2006, did not accept the following co
mpanies:
A) by the elements contained in the present, it appears:
B) periods will 5/13/1977 12/01/1976, and 01/09/1998 - fall within the 1.1.6 cod
e Decree 53,831 / 64 and 2.0.1 of the decree 2172/97 should be applied here the
statement No. 21 of CRPS
- Simply providing personal protection work, the employer equipment does not pre
clude the possibility that worker exposure to health damaging agents, should be
considered every work environment.
So this aforementioned period was recognized as special, on appeal and, therefor
e, already considered special.
HOWEVER, NOT RECOGNIZED THE ONE RIGHT OUT CONVERSION, THE FOLLOWING PERIODS,
A) the period 31/05/1977 to 14/03/1980 will, is not subject to conversion; XXXXX
XXXXXX OF BRAZIL;
B) the period 16/01/1985 to 29/05/1989 will, is not subject to conversion; XXXXX
XXXXXXX SA
C) the period 02/10/1989 to 29/01/1992 will, is not subject to conversion; FACTO
RY XXXXXXXXXXX S.A
D) the period of 02/10/1989 to 17/09/1998, is not subject to conversion; XXXXXXX
XXXXXX S / A
with the period accepted and converted by the INSS, the author now has 33 years,
2 months and 25 days worked and recognized. (As doc.).
The municipality has relegated the periods mentioned above using for this purpos
e, devices not prescribed by law, disregarding the fact that the special periods
, dating back past ages, well before the publication of the measures adopted by
the Municipality to deny framework, conversion and, consequently, the benefit. T
he legislation framework of special periods is not indicated by the Municipality
, but that the contemporary era in which the labor was subject to conditions tha
t the rule of law prescribed bygone and not current.
The municipality simply relegated the prior legislation, excluded the special pe
riods of the timing of service and denied the benefit.
With the right legislation and framework of the special period already indicated
, the Author has nearly 36 years of contribution to the INSS.
Should be remembered that framework of special periods is done in compliance of
times when there was labor with subjection to harmful agent, ie, the Annex and t
he contemporaries he legislation. Special periods are facts already accomplished
under the auspices of other rules of law, since the legal requirements have bee
n met as part of the legal heritage of the insured / Author MOST CAN NOT BE ALTE
RED BY subsequent rules.
The framework of these special times, in those Annexes, CONVERSION result in the
same for ordinary time, in order to compose the timing of service provision for
retirement for length of service.
DSS 8030 and the reports presented by the Author upon application of the benefit
are skillful and correct to be framed in those Annexes by contemporary legislat
ion at the time of labor, the local authority can not try to transmute a legal s
ituation with other supervening rules.
According to the legal requirements - Law 8,213 / 91, Decree 611, Decree 83 080/
79 53 831/64 and 2172/97, the documents establishing exposure to aggressive agen
ts in the workplace, to be considered special are: REPORTS AND SB40 (current DSS
8030 - just changed the name), which is now called PPP, were prepared by a qual
ified professional in the field of engineering / medicine and safety, which cont
ains information on the environmental conditions, which aggressive agent, descri
ption of place labor, equipment uses the measurements (noise, heat or voltage),
if the company uses EPC mention, etc., ie, the award certifies the special condi
tion of the work environment. The legal requirement for qualification is EXPOSUR
E OF INSURED AGENT NO AGGRESSIVE WORKING ENVIRONMENT, WHETHER OR NOT THE USE OF
PPE.
Appropriate to note that the statement of paragraph 20 of the COUNCIL OF THE PEN
SION FUNDS, edited by INSS, states that "The SIMPLE SUPPLY OF PERSONAL PROTECTIV
E EQUIPMENT WORK BY EMPLOYER not exclude EVENT WORKER EXPOSURE TO HARMFUL AGENTS
SHALL BE HEALTH CONSIDERED ALL WORK ENVIRONMENT ".
Thus, applications for retirement, whose special periods were relegated, and sho
uld be reanalyzed enquandrando them in their notes, which are the I and III, to
the present and not in other administrative measures, such as the IN case 78, 84
, 84 "a" (...) that contains illegal demands on special periods vindicated, as e
videnced by the documents included in the file.
It should be noted that the reports and DSS8030 provided by employers inform abo
ut the habitual and continuous noise exposure to aggressive agent, the same bein
g harmful to workers' health.
So, unhappy with the rejection of his application for retirement, after several
compliments to illegal demands woven by the Defendant, the author vindicates the
right legislation through the judiciary.
4 - THE MERITS OF SPECIAL PERIODS
In order to understand the "framework" of the periods to be considered special a
nd, therefore, have the proper conversion and counting the reckoning of service
time of retirement of the author, do a preview tour on the matter:
For periods up to 05/03/1997 laborados is used for classification of special per
iods, the requirements contained in Annexes I, II and III, respectively, regulat
ed by Decree 83,080 / 79 and 53,831 / 64;
For periods after laborados 5.3.97, is used for classification of special period
s, the requirements contained in Annex IV, regulated by Decree 2172/97.
For case in point, the periods are framed in Annex I, 1.1.5 CODE, CODE 1.1.6 and
ANNEX III ANNEX IV - CODE 2.0.1, by exposure to noise level 90 db ABOVE AND ALS
O BY EXPOSURE TO NOISE ABOVE aND BELOW 80 DB 90 DB, regulated respectively by De
cree 83 080/79 53 831/64 and kept by art. 292 of Decree 611/92, regardless of th
e use of EPC or EPI.
Let's see how the legislation framework and maintains the use of special periods
, according to the time they were laborados, prior to 5/3/97 (the earlier editio
n of Annex IV and Decree 2171/97):
The special retirement was introduced by Law 3807/60, since assuming operations
in special environments and functions held to be special (art. 31 of this Act).
The criteria established by such statute presupposes the existence of harmful ag
ents in the workplace and the special functions, was designed by ANNEX TABLE, RE
GULATED BY DECREE 53 831/64. Later this decree was revoked, leaving a time gap w
ithout any list of harmful agents and special functions.
On 09/10/68 two frames of aggressive agents and special functions, ANNEX I and I
I, regulated by Decree 63,230 / 68 were prepared. These attachments were designe
d to bring to light the activities of the legislation and harmful agents previou
sly relegated. It happens that this new listing, many aggressive agents (noise b
etween 80 and 90 for example) and functions were excluded.
To remedy this situation malgradada, 5527 was enacted LAW OF 11/08/68, who rescu
ed the use of ANNEX III AND HIS DECREE 53 831/64, protecting the FRAMEWORK OF SP
ECIAL ACTIVITIES AS AGENTS AGGRESSIVE AND FUNCTIONS OF THIS ANNEX. Decree 53,831
/ 64 provides as follows:
"Article 1. The Special Retirement, referred to in Article 31 of Law No. 3807 of
August 26, 1960, the insured will be granted which carries or has carried on bu
siness activity service considered unhealthy, dangerous or painful under this De
cree.
Article 2. For the purposes of granting Special Retirement will be considered un
healthy, dangerous or painful, THE LISTED IN ANNEX TABLE which also establishes
the correspondence with periods referred to in Article 31 of the said Law. "
Article 3. The granting of the benefit of this Decree will depend on proof by th
e insured, effected in the manner prescribed by Article 60 of the General Regula
tion of Social Security, before the Office of Retirement and Pensions that are a
ffiliated, the permanent working time and usually left over at service or servic
es considered unhealthy, dangerous or painful, for a minimum prescribed period.
"
From November 1968 to framing effects and conversion, for both perceived as spec
ial retirement for length of service, the three attachments were used.
Later, in 1979, there was the issue of Decree 83 080/79 which repealed the contr
ary provisions of Decree 62,230 / 68, but rescued, per se, the Annexes I and II,
KEEPING also the duration of Law 5527/68, COM Decree 53,831 / 64 and its Annex
III, IE:
"Decree 83 080/79
Art. 64. In the manner provided in Article 1 of Law 5527 of November 8, 1968, th
e professional categories that until May 22, 1968 were entitled to retirement pu
rsuant to art. 31 of Law 3,807 of August 26, 1960, in its original wording and f
orm of decree 53 831, of March 25, 1964, but were excluded from eligibility unde
r the rules approved by Decree 63.230 of 10 September 1968, retain the right to
this benefit under the conditions of time and age effect on 22 May 1968. "
With the enactment of Law 8213/91 and its regulatory Decree 611/92, was the main
tenance and use of the three annexes I, II, III, and its Decrees, namely:
"Art. 57 - Law 8213/91
5 The period of employment alternately in common activities and professional act
ivity under special conditions which are or may be considered to be prejudicial
to health or physical integrity will be added, after conversion, second equivale
nce criteria established by the Mystery of work and Social Security, for purpose
s of any benefit
Art 292:. Grants For purposes of special pensions, will be considered ANNEXES I
and II of the Rules of Social Security benefits, approved by Decree 83 080 of Ja
nuary 24, 1979, AND THE ANNEX TO THE DECREE 53 831 of March 25, 1964 until it is
enacted that law shall provide for the detrimental health and physical integrit
y will 0atividades. "
With the enactment of Law 9032/95, there were small changes, but the CONVERSION
of special periods and criteria for making the award and completion of current S
B40- DSS 8030, left MAINTAINED as art. 57 and its , ie:
" 3 The grant of special pension will depend on proof before the National Social
Security Institute - INSS, the time worked permanent, not occasional or intermit
tent, in special conditions that impair the health or physical integrity during
the minimum period .
4 The insured must prove, in addition to the time spent exposure to organic chem
icals, harmful physical agents or combination of agents harmful to health or phy
sical integrity, the equivalent period to that required for granting the benefit
.
5 The time of work done under special conditions that are or may be considered h
armful to the health or physical integrity will be added, after conversion to th
e working time exercised in common activity, according to criteria established b
y the Ministry of Welfare and Social Assistance for the purpose of providing any
benefit. "
Decree 2172/97, also kept the conversion and criteria for the preparation and fi
ling of the technical report SB40 - current DSS 8030.
In this context it is appropriate to clarify that Law 9032/95 to change the art.
57 of Law 8213/91, requiring reports to be provided to prove special periods an
d subject to aggressive agents, had no immediate effect because there was a need
for a REGULATION. This happened only on 03.05.97 with the advent of Decree 2172
/97. Then only from the date of publication of this decree is that the new requi
rements regarding reports could be made for periods laborados in your posterity an
d not in its advance, as it is doing the Municipality.
In this sense, one can not determine the order of service that the new requireme
nts of Law 9032/95, ONLY THAT BEGAN TO PRODUCE EFFECTIVE WITH THE ADVENT OF DECR
EE 2172/97, in respect of the requirement for reports activities BEFORE THAT LEG
ISLATION NOT prescribed, may be retroactive in time to reach facts already accom
plished under the auspices of other rules of law.
This requirement would be to call "evil race" and would violate the principle of
no surprise ...
It is known the harmful character of retroactivity alluded perpetrated by servic
e orders in view, at the expense of the right of the timing of the insured servi
ce.
We also have the following jurisprudential understanding, whose share of the vot
e of the eminent Judge Roberto Haddad, bring the collation:
"The restrictions imposed by the local authority, or even their interpretation t
eratological violate acquired rights of policyholders, and therefore inadmissibl
e practice, the wording of Article 6 of the Introductory Law to the Civil Code a
nd Article 5, xxxvi of the Federal Constitution, finding shelter before the ston
y constitutional commandments.
The plaintiff proved the claim in administrative proceedings filed on 7/23/98, a
nd the authority to communicate the rejection of bbenefcio sedimented the violati
on of the unquestionable right of the petitioner to require reports and specify
noise limits at odds with the prevailing laws at the time which, it is worth men
tioning, admitted the coexistence of devices contained in Annexes III of RBPs ap
proved by Decree 53,831 / 64 ei Decree 83 080/79. "(injunction, ams194.098, Rel.
Desemb for judgment. Roberto Haddad, dju 16.11.01, vu) ".
We see that since 1998, the Local Authority is replacing legislation for service
orders (564, 600, 612, 623), currently normative instructions, weaving in their
wake, requirements not contained in law, retroactively, that hurt Constitutiona
l principles, in the eagerness "downloading" on the shoulders of the worker / ta
xpayer, the "hole" of welfare caused by the mismanagement of public funds.
Of all exposed Legas collection, we find that, briefly, the Insured / Author, pr
oved SPECIAL PERIODS AND ITS ENVIRONMENT IN LAW vindicated.
Just for the avoidance of doubt: SPECIAL PERIODS CONSIDERED, AND IS LEGAL FRAMEW
ORK backing, IN ANNEX I, III and IV and their decrees, as we have enjoyed, are C
ONTEMPORARY THAT TO THEM, descabendo any allusions, by the local authority, the
any other Annex, decrees and internal regulations.
If I wanted a pension really prepare any administrative measure respecting conte
mporary legislation at the time of labor in harsh conditions, it should at least
split into two time periods to weave requirements (but contained in the rules o
f law):
a) for periods prior to the advent laborados in Decree 2172 of 03/05/97, these p
eriods that come under the umbrella of the requirements contained in Annexes I,
II AND III regulated by Decree 83 080/53 831 E 79/64, respectively, and maintain
ed by Article 292 of decree 611/92 until the advent of Annex IV and its regulato
ry decree, the aforementioned 2172/97;
b) For periods laborados posterity the advent of Decree 2172/97.
About the matter we must emphasize that the EPI was only contemplated in Decree
3048/99, but not discarding the special periods.
We also emphasize that the local authority should be reviewing these cases, but
it is not what happens.
6 - RIGHTS ACQUIRED THE AUTHOR
6.1 HOW TO SPECIAL COMPUTO
As above, the vindicated in this special periods are under the aegis of Decree 8
3 080/79 AND ANNEX I, 1.1.5 CODE; Decree 53,831 / 64, ANNEX III code 1.1.6 and D
ecree 2172/97, ANNEX IV, MAINTAINED by Decree 611, Article 292 Such periods have
already satisfied the contemporary to the time of labor so as to be considered
legal requirements as part of the legal heritage the worker can not, "further me
asures", such rechaarem periods. Thus, by computing the special periods and their
"plus" conversion and adding the same to the common period, the author lives up
to the perception of common retirement benefit under the aegis of the Law 8213/
91.
We emphasize that in the lapse of time between the application of the benefit, i
ts negative and bringing the lawsuit, numerous restrictive character of normativ
e acts were edited, rights pleaded here, may not the same, be applied to the pre
sent case, under penalty to injure the vested right of the Author, and confront
the CF / 88 and social security legislation relevant to the species. So should n
ot, for the present case, be used, normative instructions, circulars, orders tha
t inhibit the prompt implementation of the rules invoked right now.
The issue of pension normative acts, not currently constitute guarantee that occ
urs effectively compliance, especially when edited in a vain attempt to meet up
court order (civil action), which even became final.
REQUESTS
Given all the above, requires V.Ex. to deign to send quote NATIONAL INSTITUTE FOR
SOCIAL INSURANCE - INSS, Agency of So Paulo - So Paulo, Rua Xavier headquartered
in Toledo, n. 280 - Centro - So Paulo - Sao Paulo, Cep: 01048-000, in the person
of its legal representative, to present his defense, wanting, on pain of default
and confession, as well as accompanying all other acts and terms procedural to
the end and thus, that "reverence maximum date", V.Ex. will coming this demand, c
ondemning itself to autarchy in the following order:
a-) that special periods described above are recognized as a special activity, a
nd so making the right conversion period worked in the following companies:
1. the period 14/03/1980 to 31/05/1977 will XXXXXXXX OF BRAZIL;
2 the period 29/05/1989 to 16/01/1985 will, XXXXXXXXXXXX S / A.
3 the period of 02/10/1989 will 29/01/1992, XXXXXXXXXXX S / A
4 the period of 02/10/1989 A17 / 09/1998 XXXXXXXXX S / A
b-) the special periods mentioned above, are computed on the timing of service P
LUS WITH THE CONVERSION for the benefit of No. 42 / XXXXXXXXXXXX, required on 27
/11/1998;
c-) With the result of the computation time of service, CONVERSION WITH PERIODS
OF SPECIAL coupled with time of service COMMON, which will result in 36 years 02
MONTHS AND 04 DAYS OF TIME SERVICE, WHETHER SUCH compelled to deploy AUTARCHY i
mmediately the benefit of the Author (NB 42 / XXXXXXXXXXXXX, based on Legal stan
dards rather than illegal administrative measures (service orders - regulatory i
nstructions, etc.) from the date of application for the benefit, held on 03/03/1
999, with the payment of the installments in arrears, duly corrected, attorneys'
fees and other legal sanctions.
d-) What your Home Monthly (RMI) Income is calculated based on the last 36 (thir
ty six) contribution salaries, preceding the application, as required by current
legislation on the date of application, and that they are updated with base the
rates of increase in wage policy.
e) to comply with its obligation to do by virtue of the constant requests in par
agraphs "a" "b" and "c" above, within 15 days from the final and unappealable de
cision of R.Deciso to be issued, under penalty of of 3 of Article 461 of the Code
of Civil Procedure, applying daily fine until the effective compliance, and oth
er relevant legal sanctions;
f-) that the calculated values are increased with interest from the date of the ad
ministrative application date 27/11/1998 in the import of 1% per month, in accor
dance with Article 3 of Decree-Law No. 2,322 / 87, indexation to date of actual
payment, both in terms of current legislation.
g-) Requires, finally, that you are deferred, pursuant to Law 1060/50, the benef
its of free legal aid for the poor be Author in the legal sense.
h) further requires the sentencing of defendant prays Institute, the payment of
funds relating to the burden of defeat and style of other funds;
THE EVIDENCE
Requires evidence of the alleged through all the evidence admitted at right, mos
tly in the accompanying documents to present, gathered new documents, expertise,
which already is expressly required, in addition to other necessary means, with
out any exception, statement to perfect the action.
VALUE OF THE CAUSE
Gives cause the value of R $ 28,000.00 (twenty eight thousand reais)
Terms wherein
Asks approval.
Location, date
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