Superendividamento do consumidor à luz da lei 10.820/03: uma desconstrução do código de defesa do consumidor sob a égide da inconstitucionalidade formal e material

Abstract

The aim of this paper is to identify the unconstitutionality of the Law 10820/03, which deals with the way financial institutions and leasing companies make loans, financing and leasing operations, with a payroll discount to employees governed by Consolidação das Leis do Trabalho (CLT) and beneficiaries of INSS (Instituto Nacional de Seguridade Social). The problem was raised from the relationship between the socio-political and economic context in which the law came into existence and the causes of consumer over-indebtedness as a vulnerable part of the consumption relationship, especially the elderly, naturally hypervulnerable. Following this parameter, this paper projects the notoriety of the benefits granted by cited legislation to financial institutions, while consolidating the budget overload of the most vulnerable population, in total disagreement with constitutional text. The methodology consisted in qualitative and exploratory bibliographic research associated to an empiric method of phatic and deductive observation. Initially, an analysis about the definition of payroll lending and how it contributes to the over indebtedness of workers and retired people was performed. Then, the Articles of Law n. 10.820/2003 that were incompatible with the Constitution of Federative Republic of 1988 were identified in light of the legal rules, jurisprudence and doctrine. Lastly, in the face of the unconstitutionality of the “Payroll Lending Law”, alternatives are presented in order to make an effective consumer governmental protection and defense, in accordance to the National Consumption Relationship Policy