(PT) CNJ suspends TST rule on substitution of money for guarantee insurance - RMS Advogados
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CNJ suspends TST rule on substitution of money for guarantee insurance


In the Administrative Control Procedure, TST and CSJT maintained that in judicial guarantee insurance “there is no link with the contractor's bank credit lines.

Decision of Counselor Mário Guerreiro, of CNJ, in Administrative Control Procedure No. 0009820-09.2019.2.00.0000, granted an injunction suspending the effectiveness of articles of Joint Act No. 1 / TST.CSJT.CGJT, from October 16, 2019, until the decision on the merits, re-establishing, therefore, the possibility of replacing the cash deposit in the labor execution or in the appellate phase with the judicial guarantee insurance, in the perspective of the procedural legal rules that allow the replacement of the money attachment by this type of guarantee.

The Joint Act of the Superior Labor Court provides for the use of judicial guarantee insurance and bank surety in substitution of the appeal deposit and to guarantee the performance of labor, specifying the requirements for its acceptance, such as, for example, the correspondence between the insured amount and the original amount of the debt, with charges, legal additions, attorney’s fees, assistance and expert fees, all updated and increased by at least 30%; documents that must be presented when the guarantee is offered; equivalence between the period for presenting the policy and that of the procedural act it seeks to guarantee; as well as articles 7 and 8, suspended by the aforementioned preliminary decision, which conditioned the acceptance of the guarantee insurance to its presentation prior to the deposit or effecting the constriction in cash, or before the expropriation of the pledged asset, with the creditor’s consent; the use of this type of guarantee is not allowed after the deposit of appeal.

In the Administrative Control Procedure, TST and CSJT maintained that in the judicial guarantee insurance “there is no link with the contractor’s bank credit lines, which frees them up to carry out other financial operations, such as financing for the execution of their contracts and projects” , adding that the Joint Act had the purpose of eliminating doubts and insecurity among magistrates, lawyers and jurisdictions regarding the rules that allow the replacement of money by this type of guarantee (articles 882 and 889, § 11, CLT), emphasizing that in the labor legislation there would be no authorization contained in CPC / 15 for subsequent replacement by the insurance guarantee of the amount already deposited or pledged.

The decision that granted the preliminary injunction was guided by the applicability of § 2, of article 835, CPC / 15 that equates bank guarantee and judicial guarantee insurance to money in the order of preference of the attachment, by the reference that is made to the civil procedural rule in article 882, CLT, as well as the lack of a rule on substitution of guarantees in labor legislation, which, according to the Counselor, would configure the hypothesis of incidence of article 769, CLT (common procedural law as a subsidiary source of labor procedural law) , in conjunction with article 847, CPC / 15 (possibility of replacing the pledged asset with the one executed within 10 days from the summons summons).

In this sense, the decision consigned, among other aspects, the incompatibility between article 7 of the Joint Act and the rules of procedural law that allow the replacement of the attachment of money by the judicial guarantee insurance (art. 769, CLT c / c art. 847 , caput, CPC / 15) and article 8 of the same Joint Act in relation to article 899, § 11, CLT, which allows the substitution of the appellate deposit for these guarantees without any type of conditioning, recognizing also the existence of danger of damage due to the losses caused by the “retention of cash in order to guarantee the performance or the resource”, together with the benefits that the release of these resources would promote in business activities and in the insurance sector.

By: Wilson Sales Belchior

Source: https://www.clickpb.com.br/blogs/click-jus/clickjus-cnj-suspende-regra-do-tst-sobre-substituicao-de-dinheiro-por-seguro-garantia-277709.html


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