A responsabilidade civil nas demandas judiciais envolvendo descontos associativos indevidos em Sergipe

Abstract

This paper addresses the issue of the civil liability of the National Institute of Social Security (INSS) and associative entities in the face of the billion-dollar fraud involving undue deductions from social security benefits, focusing on the analysis of claims for moral damages in the state of Sergipe. The research is justified by the severity of the estimated loss of R$ 6.3 billion and the vulnerability of the insured individuals affected in their essential income. The analysis begins with the protective institutional function of the INSS, according to the precepts of Social Security and the 1988 Federal Constitution, in contrast to the billion-dollar fraud uncovered by Operation No Discount in 2025. The research investigates how the administrative omission of the federal agency and the illicit conduct of associations, exemplified by the case of AAPPS Universo based in Aracaju/SE, whose membership exceeded the local population, caused harm to the entire community. The methodology adopted is qualitative, of a documentary and bibliographic nature, using inductive, deductive, systemic, and dialectical methods. In the field of civil liability, the objective and subsidiary nature of the INSS (Article 37, § 6, CF) is substantiated due to failures in the duty of data surveillance and protection, and the liability of associations under the Consumer Protection Code. The analysis concludes that, although the institutional agreement of 2026 has reimbursed R$ 2.84 billion to date, the measure is insufficient for elderly people with low digital literacy and does not meet the need for nonpecuniary damages. In the judicial sphere, the hypothesis of legal uncertainty in Sergipe is confirmed by the persistent divergence between the Civil Chambers of the TJSE: while the 1st Chamber recognizes the alimentary nature of the funds and the damage in re ipsa, the 2nd Chamber frequently applies the thesis of mere annoyance. Furthermore, jurisprudential divergences were also found regarding the configuration of moral damages in the decisions of first-instance judges. Finally, it is concluded that the awarding of derisory compensation by judges in Sergipe fails to fulfill the punitive-pedagogical function of civil liability, encouraging the repetition of lucrative wrongdoing by associations to the detriment of the dignity of the highly vulnerable insured party.