Resumen

MORALES RAMIREZ, María Ascensión. Comments to jurisprudence 2a./J. 164/2019 maximum of the 10 minimum wages for pensions. Rev. latinoam. derecho soc [online]. 2020, n.31, pp.231-244.  Epub 01-Nov-2021. ISSN 2448-7899.  https://doi.org/10.22201/iij.24487899e.2020.37.14870.

On January 24, 2020, the jurisprudential thesis 2/J 164/2019, was published in the Judicial Weekly of the Federation. which reiterates the maximum of 10 times the minimum wage for the payment of pensions for disability, unemployment in old age and old age to the generation in transition who chooses for the Social Security Law system in force until June 30, 1973, criterion that was determined in jurisprudence 2a./J.85/2010.

In the reform of the Social Security Law, Mexico, unlike the other Latin American countries that introduced individual capitalization in the pension system, did not clearly and sufficiently regulate the situation of the generation in transition, especially the relative at the time prior to exercising the retirement option. Thus, at the time of the reform, policyholders were denied the freedom to choose between the old and the new system. In the explanatory memorandum of the current law of 1997, it was argued that “all active workers would start contributing under the new pension system”.

15 years after the issuance of the current Social Security Law (December 21, 1995), effective as of July 1st, 1997 and evading what is stated in the explanatory memorandum of this law, through jurisprudence it has been establishing the rules to which the generation in transition will be subject to due to legislative omission, as there is no specific order similar to what later turned out to be the Regulations for the granting of pensions to workers subject to the regime of the Tenth Transitory Article of the Law of the Institute of Security and Social Services of State workers (LISSSTE), which was the product of 223,810 amparos 4 that included the 90% of the insured.

Under this imprecision and legal uncertainty, in practice, the actions of the Mexican Institute of Social Security (IMSS) in the calculations, refusals, modification, rectification and correct payment of the amount or increase of the pension, have forced the insured to go to the jurisdictional courts.

Thus, through four jurisprudences of the Second Chamber of the Supreme Court of Justice of the Nation (SCJN), 5 namely: 2a./J.85/2010; 2a./J. 114/2012; 2a./J.8/2016; and 2a./164/2019, the “transitional regime” of IMSS affiliates has been set up under the Social Security Law in force until June 30, 1997 and, therefore, the determination of the maximum applicable to the calculation and payment of pensions.

Palabras llave : jurisprudence; stop; minimum salary; pensions; social security.

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