A prescrição intercorrente e sua aplicação ao processo do trabalho

Abstract

This study was conducted in order to analyse the institute of intercurrent prescription and how it is applied in Labor Process. Although there is no longer any doubt about its scope, until the Law number 13.467/2017, the Labor Reform, the subject generated controversy in the Brazilian legal scenario, given the existence of antagonistic understandings summarized by the Federal Supreme Court and Superior Labor Court. The first one affirmed the existence and the second denied it. In the same way was the doctrine, that defended mainly either non-fitting or fitting, but only in specific situations. Although the doctrinal contributions and position of the highest Court in labor subject, the Reform inserted the article 11-A to the CLT, in opposition to the provisions of TST Precedent 114, stating that “there is a concurrent prescription in the labor process in within two years”. Now, it is no longer arguing about the appropriateness, but about ways of applying the institute without renouncing one of the most important labor principles that is the protective principle. In this way, it is argued that the intercurrent prescription, to be declared, in the execution phase, must be preceded by a intimation to the executor of an act that could solve the execution and the latter, by malice, did not practice it. Two years later, the magistrate must enforce the contradictory principle, determining a new intimation so that can be argued in the case if there were suspensive or interruptive causes. Only in this way will it be possible, in the current scenario, to maintain the coexistence of labor principles and article 11-A of the CLT. Still, the term chosen by the legislator is unconstitutional, since the labor prescription is treated by hierarchically superior rule, the Constitution itself, and has a biennial and five-year term, that was ignored by the reformist legislator.