Imputação objetiva no direito penal econômico: o desvalor jurídico-penal dos negócios empresariais de risco

Abstract

The complex nature of the criminal law provisions that compose Economic Criminal Law has led criminal law theory to shift its focus to the configuration and the limits of behavioral norms. As a result of the focus on the simple disvalue of action, the criminal offense has lost its identity, criminal law has been transformed into a field made up of prohibitions ancillary to other legal and extra-legal branches that deal with the regulation of behavior, and the imputation of a criminally prohibited event at the level of the objective typus has given way to the formulation of procedures for attributing criminal responsibility that are more often than not determined by extra-legal norms. The symptoms of all these problems have emerged in recent years in so-called risky transactions, a group of cases in which, on the one hand, the decision-maker hardly foresees or controls the consequences of the transaction from an ex ante perspective and, on the other hand, is only prosecuted if the transaction has undesirable consequences ex post. Thus, in cases of Economic Criminal Law, criminal law theory has been plagued with chaos, and reinstating the disvalue of the consequences as the central part of the content of the offense is one of the most important, yet still pending, tasks in the realm of the theory of objective imputation. Therefore, the aim of this study is to recover the immovable points of Criminal Law and the raison d'être of the theory of objective imputation in order to systematically apply it to the field of Economic Criminal Law, since this is a safe way for the objective categories of economic criminal offenses to capture the criminal disvalue of risky transactions, critically distinguishing criminal risky transactions from merely ruinous risky transactions