Semântica operacional para diferenciação de autoria e participação delitivas da pessoa jurídica no direito brasileiro

Abstract

This thesis develops a dogmatic proposal for distinguishing corporate criminal perpetration and complicity in the context of multiple offenders under Brazilian criminal law. The starting point is the constitutional recognition of corporate criminal liability, whose effectiveness requires normative and dogmatic criteria capable of reconciling institutional self-responsibility with the principles of nontranscendence of punishment, proportionality, legal certainty, and individualized sentencing to each of the subjects considered by the legal system to be self-responsible. The central problem is framed in the following question: how can one, in dogmatic terms and under the current Brazilian normative framework, distinguish whether a legal entity envolved in a criminal offense is a perpetrator or an accomplice? The working hypothesis is that the solution lies in a qualitative analysis of the typical contribution: perpetration occurs when the conduct of the legal entity, conceived as a meaningful expression of its personhood, in a commission, at least objectively and positively dominate the “if” and “how” of the typical event or, in an omissive manner, violate the duty to prevent a result that falls within its scope of responsibility without dependence on the scope of responsibility of another selfresponsible person; in other cases, it may constitute complicity, including negligent forms, if its intervention conforms to what is understood as determination, instigation, material or ideal assistance, or collusion. The argument rests on five main theoretical frameworks: (i) the meaningful conception of action (Vives Antón, Galvão); (ii) the personalist conception of action (Roxin, Gómez Tomillo); (iii) some Anglo-American theoretical contributions on corporate identity and inferential imputations (Diamantis); (iv) the criterion of objective and positive domination of the fact (Luzón Peña, Díaz y García Conlledo); and (v) the criterion of demonstrating the harm caused by the omission not subject to the scope of organization of a third party criminally liable (Brener). Methodologically, the study is a legal-dogmatic inquiry of hypothetical-deductive and deductive orientation, based on the analysis of relevant legislation, case law from the superior courts, and national and foreign scholarship. The contribution consists in offering an operational semantics that allows, in a controllable way and in conformity with constitutional guarantees, to distinguish between forms of corporate perpetration and complicity, thereby avoiding both irresponsibility and hetero-responsibility, as well as other contaminations of liability, while promoting a model of corporate criminal liability consistent with the contemporary supra-individual reality of organizational action.