Responsabilidade penal da pessoa jurídica

Abstract

The enterprises have a relevant and essential activity in modern society, what takes to the question of their criminal responsibility in cases of infractions. Historically with some exceptions vigor s the societas deliquere non potest principal, but in the end of the XIX century the increasing intervention of the State, featuring guarantee social rights and more a head guarantee human dignity and social justice, starts the discussion of the mitigation of that principal, in consequence of appearing the diffuse (economic order, financial order, environment etc) infractions, in what the enterprises are the majors violators. The theme needs the following criminal principals: strict law, culpability and personality of the sanction. Two theories are used to explain the juridical nature of enterprises: fiction and reality. The doctrine unfavorable for the responsibility supports their allegations saying: there is lack of human action, impossibility to determinate culpability and incapacity for sanction. The thesis demonstrates that enterprises have action and culpability, from the extension of the ones that their representative organs have (indirect imputation), also they are capable of preventive side of the criminal sanction. It cannot be accepted a direct imputation of the action and culpability of the enterprises, because that could take too a total rupture with the principles of Criminal Wright. The first time that is found a criminal responsibility of enterprises in Brazil is a prescription made by the paragraph 2º, of the article 19 of the law number 8213/91(says that it s a contravention the violation of work regulamentation of hygiene and security), after that it is found in the practice of crimes against the environment, made by the article 3º of the law 9605/98, obeying the constitutional mandate prescript at the article 225, paragraph 3º. The law makes two explicit acquirements (a deliberation in the enterprise and the action needs to be favorable for the enterprise) and one implicit (it cannot be a public enterprise) for the configuration of the enterprise responsibility. The sanctions are due to the nature of the enterprise: ticket, restriction of rights and community service. There is a lack of legislation in not criminalize enterprises in the practice of crimes that are related to the manipulation and use of transgenic (law 11.105/05), because diffuse crime and besides, the enterprises are the ones that detain or the legal permission, or the structure and financial size to act in this area. There is also a lack of legislation in the cases of infractions against economic order, financial and public economy (article 173, paragraph 5º of the Federal Constitution), also because it s a diffuse crime and it s a area where the enterprises have the economic power to offend the value that is being protected