Da autoria mediata pelo domínio por organização na criminalidade de empresa

Abstract

This is a study on the possibility of applying the criterion of mediated authorship by organizational domination in corporate crime. Although Claus Roxin himself, "father" of the theoretical construction, has criticized the hypothesis, some precedents of the Bundesgerichtshof (BGH) have understood that it is possible to extend the figure, originally developed in the context of judging crimes committed under National Socialism, to corporate crime. Naturally, the understanding of the German court made it inevitable that a broad doctrinal discussion would ensue on the subject, which gave rise to voices both for and against the application of the criterion to the business context. But, before analyzing the correctness of the arguments presented, the research sought to understand the completeness of the mediated authorship by the domain through organization. Starting from the comprehension of the theoretical frameworks under which Roxin developed the theory of the dominion of the fact and his plastic formula of the authorship as the central figure of the typical happening to the study of the problematic inherent to the legal institute of the mediated authorship, in which, after analyzing its assumptions its different structures and its relation with the principles of self-responsibility and responsibility stricto sensu, the understanding was consolidated that the intermediate author is criminally responsible for a fact of his own, an injustice peculiar to him, namely, the instrumentalization of the executor for the production of the typical result. Considering the scientific validity of these preliminary premises, it was developed that the mediated authorship of the dome of the power apparatus is as much in the organization prior to the criminal facts as in the real existence of a hierarchic power structure with subordination and division of tasks, although the decisive element, because responsible for triggering the practically automatic functioning of the organization, is the illicit order, as long as it is directed to fungible agents inclined to the delinquent fact. Finally, in view of the need for the apparatus to produce typical results in a practically automatic way, the only possible dogmatic answer on the question of the applicability or not of the dominion by organization in corporate criminality is negative, because as soon as a corporate company acts in this way it must already be considered a criminal organization.