Permitam-me retomar em consideração o assunto do litisconsórcio invocado pela CONTESTAÇÃO, de que tratei no texto anterior deste meu blog. Não fiquei satisfeito com a forma como ali expus a matéria e refutei o entendimento da CONTESTAÇÃO.
Com efeito, a CONTESTAÇÃO solicita ao Juiz que imponha à PREVIC, ré, o litisconsórcio NECESSÁRIO da UNIÃO (que baixou o instituto da Reversão de Valores), das EFPC (cujo Conselho Deliberativo decidiu pagar a Reversão de Valores) e dos PATROCINADORES que receberam a Reversão de Valores, invocando ela o artigo 47 do Código do Processo Civil:
“Há litisconsórcio necessário, quando, por disposição de lei ou pela natureza da relação jurídica, o juiz tiver de decidir a lide de modo uniforme para todas as partes; caso em que a eficácia da sentença dependerá da citação de todos os litisconsortes no processo.
Parágrafo único. O juiz ordenará ao autor que promova a citação de todos os litisconsortes necessários, dentro do prazo que assinar, sob pena de declarar extinto o processo.”
Minha opinião.
Litisconsórcio, diz o Dicionário Jurídico Universitário (Maria Helena Diniz), é o vínculo que, nos casos previstos em lei, prende vários autores ou réus num só processo pela comunhão de interesses, para discutirem uma só relação jurídica material.
Há vários tipos de litisconsórcio. Aqui, é claro, a CONTESTAÇÃO está afirmando que, na ACP, existe LITISCONSÓRCIO PASSIVO NECESSÁRIO da PREVIC, com UNIÃO, EFPC e PATROCINADORES.
Entendo que existam aqui DOIS FATOS JURÍDICOS sob juízo: o da ILEGALIDADE e o do DESFAZIMENTO DA REVERSÃO DE VALORES.
O fato jurídico da ILEGALIDADE é o principal, absoluto e condicionante. O fato jurídico do DESFAZIMENTO é secundário e condicionado, de modo que, dependendo da decisão sobre o primeiro, pode até nem ocorrer.
A relação jurídica da legalidade de um regulamento ancilar de Previdência Privada Complementar tem como sujeito de direito a UNIÃO (Ministério da Previdência Social/CNPC), como autora do regulamento e a PREVIC, como agente coagente da inserção desse regulamento nos CONTRATOS PREVIDENCIÁRIOS das EFPC e como sujeitos passivos as EFPC, que são coagidas a promoverem as modificações contratuais. Note-se que a EFPC é sujeito passivo absoluto, só lhe cabe modificar o Contrato Previdenciário, em passivíssima obediência ao mandamento ou à proibição contida no regulamento ancilar. Não lhe assiste direito algum de verificar se o mandamento ou a proibição são legais ou ilegais.
Já a relação jurídica do fato jurídico do DESFAZIMENTO da REVERSÃO DE VALORES é entre PREVIC e EFPC como sujeitos de direito e PATROCINADOR como sujeito de obrigação.
É patente que, antes de mais nada, tem que ser julgado o fato da legalidade ou ilegalidade da Reversão de Valores. Nesse fato, no meu entender, é patente o litisconsórcio necessário da União com a PREVIC, já que a Reversão de Valores foi instituída pela Resolução CGPC 26/08, órgão criado para produzir os regulamentos ancilares às leis da Previdência Privada Complementar, sucedido hoje pelo CNPC (Decreto nº 7123/2010) e, de fato, hoje o responsável pela Resolução CGPC 26/08. A União, portanto, é o sujeito de direito da relação jurídica do fato jurídico da instituição da Reversão de Valores, e a responsável pela legalidade ou ilegalidade da Reversão de Valores.
Se legal a Reversão de Valores, extingue-se a ACP, permanecendo validadas todas as Reversões de Valores ocorridas. Se ilegal, aí sim, a ACP prosseguirá em sua nova fase, a fase do DESFAZIMENTO das Reversões de Valores ocorridas.
Entendo, portanto, que o exato entendimento do artigo 47 da Lei limita-se no momento à oitiva de dois litisconsortes necessários passivos da ACP , a PREVIC e a UNIÃO, os sujeitos de direito da relação jurídica do fato jurídico da instituição da Reversão de Valores (Resolução CGPC 26/08). E estes dois já foram ouvidos pelo Juiz, exatamente através desta CONTESTAÇÃO que estamos comentando.
PATROCINADOR e EFPC, como tais, nada têm a dizer sobre legalidade, já que aquele, como tal, nem mesmo participa da relação jurídica do fato da instituição da Reversão de Valores, e este é meramente submisso servo, e tão obediente aos comandos do CNPC e da PREVIC que apenas lhe cabe tratar de modificar o CONTRATO PREVIDENCIÁRIO, sem nem mesmo discutir a legalidade da modificação. E é exatamente essa condição de total submissão que a EFPC alega, quando interpelada nos tribunais a respeito de suas responsabilidades pela Reversão de Valores! Ademais, os dois como membros do CGPC igualmente contribuíram com seus votos para a aprovação desse instituto ilegal!
Concluo, portanto, ousando expressar minha opinião de ignorante em Direito, dizendo que entendo que o Juiz já ouviu os dois litisconsortes necessários passivos da ACP. no que diz respeito ao julgamento da ILEGALIDADE do fato jurídico da instituição da Reversão de Valores, a saber, a PREVIC e a UNIÃO, através desta única peça de defesa, a CONTESTAÇÃO que venho comentando neste meu blog.
(continua)
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