Over-Indebtedness and the Existential Minimum: a Diagnostic Assessment of the Unconstitutionality of Decree 11.150/2022 and Its Impact on Law 14.181/2021

Abstract

Over-indebtedness is currently a social problem resulting from various factors, including the undeniable influence of capitalism on consumer culture. In this context, Law 14.181/2021 (the Over-indebtedness Law) came into being, amending the consumer protection microsystem and the Elderly Statute, with the aim of protecting natural, over-indebted and bona fide consumers, using the existential minimum as a parameter. This existential minimum is regulated by Decree 11.150/2022, which has received incisive criticism for not adequately addressing social reality. Thus, the aim of this research was to exploratorily analyze the existential minimum as a legal category established by Decree 11.150/2022 and its impacts on the Over-indebtedness Law, assessing its unconstitutionality. The research had a qualitative approach, an applied nature and exploratory objectives, systematized through bibliographical and documentary research procedures and research into court cases. The framework for the analysis of unconstitutionality was the General Theory of Constitutionality Control, which served as the basis for a critical and reflective framework, strengthened by an empirical survey. It can be seen that Decree 11.150/2022 underwent two changes that emptied the concept of the existential minimum: initially, establishing a percentage of 25% of the 2022 minimum wage (R$303), and currently setting the amount at R$600. A concept of existential minimum that is committed to social reality, in turn, must encompass the needs of each case and guarantee social and fundamental rights in the debt renegotiation process. In light of this, the Decree was analyzed in the light of the hypotheses of constitutionality control by means of direct action, and the suitability for filing a motion for breach of fundamental precept (whose acronym is ADPF) was identified. The empirical survey found that three constitutional actions were received by the Supreme Court in this hypothesis (ADPFs 1005, 1006 and 1097), proposed by the National Association of Public Defenders and the National Association of Members of the Public Prosecutor's Office. In general, the argumentative lines of the petitions indicated the need for greater consumer protection, the insufficiency of the current value of the existential minimum to guarantee the vital minimum and the urgency of effective policies to prevent and treat over-indebtedness. Thus, it can be concluded that Decree 11.150/2022 falls short of social indicators, the demands of academics and specialists, as well as organized civil society. Maintaining it in its current terms is detrimental to the constitutional order and contributes to the perpetuation of poverty and miserability. Therefore, it is necessary to adopt a strategic and committed conception of the existential minimum, which is applied individually in each out-of-court negotiation or lawsuit aimed at dealing with over-indebtedness. This will make it possible to analyze the specificities of the over-indebted consumer's life, as well as their possibilities in the renegotiation process, guaranteeing them the full exercise of citizenship and the enjoyment of their rights.