Responsabilidade penal da pessoa jurídica nos crimes contra o Sistema Financeiro Nacional

Abstract

This work aims to bring to light the Criminal Liability of Legal Person, but with a difference of other doctrines, which always have the theme from the perspective of environmental law. I dare, because I will work upon the criminal liability of legal person, on the National Financial System. I consider the issue on two areas, firstly on the terms of Article 173, Paragraph 5 of the Federal Constitution, and secondly I look in the light of Article 25 of Law No. 7492/86. Also examined are the administrative aspects involved in the National Financial System, such as the performance of entities of the federal mandate for the monitoring of the National Financial System, and the administrative penalty procedures adopted by these entities. Moreover, it is important to stress that there is the large majority of the doctrine and jurisprudence of the Brazilian courts, a great paradox because of Personal Criminal Liability (Article 5, item XLV of CF/88). Because it conflicts with the Criminal Liability of Legal Person of Article 173, Paragraph 5 of the Federal Constitution. The paradox to be solved both by doctrine, as the case law is that persons or legal entities have no collective volitional action, which is a primary factor for the recognition of the crime charged in kind. I will continue by the study from two theories used by the German school which are: the Theory of Fiction (produced by Carl Friedrich von Savigny) and Theory of Reality (developed by Otto von Gierke). Everyone defends his point of view on the legal acts that a person may or may not hold. In the case of the Theory of Fiction, its maker says the corporation is nothing more than a contract between humans; it is only the human will is allowed to practice crimes and be accountable for their actions. The opposite is preached to the reality of this theory say that the corporation will have its own life and whose purpose is the achievement of social order. So, before this theory the corporation is able to practice and commit crimes. Finally, to raise the constitutional criminal principles as factual support. To give support to our Dissertation, because the principles are constitutional guarantees of a criminal Social and Democratic State of Law. And that is to always protect the good and legal citizens living in it. Never, do that there is a distortion on the other. Thus, constitutional principles will contribute to the conviction of this great work