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STJ Decision Clarifies That the Worker Only Needs to Prove Damage When the PASEP Withdrawal Occurs by Payroll or Credit to Account.
The STJ defined, in the judgment of Theme 1300, one of the most anticipated theses regarding PASEP reimbursement actions. The Court established that the burden of proof depends on the form of withdrawal: when the payment was made directly at a Banco do Brasil branch, it is up to the bank to prove that the worker received correctly; in cases of credit to account or payroll payment, the responsibility to prove the damage lies with the participant.
According to specialist Valter dos Santos, the decision brings legal certainty and standardizes the understanding on thousands of lawsuits filed by public servants and workers who claim to have lesser or unduly withdrawn amounts from their PASEP accounts. The judgment complements Theme 1150, in which the STJ had already recognized the legitimacy of Banco do Brasil to answer for failures in account management.
What the STJ Decided in Theme 1300
The Superior Court of Justice analyzed the responsibility of Banco do Brasil in managing individual PASEP accounts, a public program created to build assets for workers.
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According to the decision, the bank acts as a service provider paid by the Union and by the participants, being required to maintain reliable records and prove payments made.
In practice, the STJ established that the rule changes according to the type of withdrawal:
Withdrawal at agency: the payment is made directly by Banco do Brasil, and therefore it must prove that the worker received the amounts, since the bank holds the control and attendance records that confirm payment.
Credit to account and payroll: in these cases, payment may occur through third parties (other financial institutions or the employer), and therefore, the worker is the one who needs to demonstrate that they did not receive or that there was a difference in the amount.
This differentiation follows Article 373, inciso II, of the Code of Civil Procedure, which assigns to the defendant the burden of proving facts that extinguish the rights of the plaintiff, and Article 320 of the Civil Code, which imposes on the payer the duty to prove payment.
Why the Decision is Important for Workers
The judgment of Theme 1300 directly affects employees and workers who started working before 1988, a period when PASEP still received monthly contributions from public and private companies.
Many of these participants filed lawsuits requesting reimbursement alleging differences in the balances managed by Banco do Brasil.
With the new thesis, the STJ simplifies the defense for workers who withdrew amounts at an agency, as now the bank is the one that must present the original withdrawal and payment receipts.
On the other hand, those who received via payroll or credit to account still have to demonstrate the lack of deposit, through statements, pay slips, or bank documents.
The decision also standardizes judgments throughout the country, avoiding contradictory decisions among judges and regional courts.
According to lawyers practicing in the area, this reduces the processing time of lawsuits and establishes clear criteria regarding the burden of proof.
The Context: Banco do Brasil and PASEP Management
Created in 1970 and unified with PIS after the 1988 Constitution, the Public Servant Asset Formation Program (PASEP) is managed by Banco do Brasil, which has the function of managing individual accounts and processing payments to participants.
The bank’s operation is governed by public norms, but its responsibility is of a civil nature, since it performs paid operational functions.
Theme 1150 of the STJ had already recognized this passive legitimacy of Banco do Brasil, that is, the right of the worker to file lawsuits directly against the bank, and not just against the Union.
Theme 1300 deepens this understanding, defining when each party must present evidence, a point that generated more uncertainty in reimbursement actions.
What Changes from Now On
With the established thesis, courts across the country must apply the same understanding in similar actions. Thus, the worker who claims error, undue withdrawal, or uncredited amount must observe what was the mode of payment recorded in the system:
- If the withdrawal occurred at the branch, Banco do Brasil has the duty to present evidence and records of attendance.
- If the withdrawal was by payroll or credit to account, the worker needs to present documents showing non-receipt or the difference.
Furthermore, the decision reinforces the role of Banco do Brasil as a paid public service provider, subjecting it to the duty of transparency and diligence in keeping payment records.
The STJ, when judging Theme 1300, created a fair and technical division of the burden of proof, protecting both the worker and the banking system.
The Court recognized that those who control the operation must prove its correctness, and those who claim non-payment must demonstrate the damage.
This definition ends a controversy that has for years held back thousands of lawsuits regarding the PASEP, allowing now for faster and more predictable decisions.
And you, do you believe that the STJ was correct in dividing the responsibility according to the type of withdrawal? Leave your opinion in the comments and share if you know someone who was affected by this decision.
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