O sistema de imputação da responsabilidade penal da pessoa jurídica e o projeto de novo Código Penal (projeto de Lei n. 236 de 2012 do Senado Federal)

Abstract

The present study has as its object of analysis the aspects and requirements of the criminal liability of the legal entity, through the study of the tripartite analytical concept of crime (typical, unlawful and culpable fact) and its application in the scope of the legal person. That said, it will be discuss the personality criterion identifying the criminal moral person, the criminal typifications attributable to the moral entity and the list of protected legal interests. From there, the provisions of article 41 of the Senate Bill n.o 236 of 2012 will be faced, which aim to implement new hypotheses of criminal liability of the legal entity in addition to those already provided for in the Environmental Crimes Law (Law n.° 9.605/1998, article 3o), as well as identifying the inadequacies of the legislative proposal in view of the insufficient wording of article 41 of PLS n.° 236/2012 and its technical gaps. The criminal liability of the legal entity will be approached as a hypothesis capable of promoting the general preventive function before society, however, it will be analyzed that the normative proposal cannot forget to establish the specific concepts of 'conduct' of the person legal and their respective excluding causes of 'unlawfulness' and 'culpability' of the moral entity, given that conscious and voluntary human conduct does not meet the requirements of the pure normative conception of culpability adopted by the Penal Code of Brazil (Decree-Law n.° 2.848/1940) - now maintained in PLS n.° 236/2012 -, in addition to the fact that the moral entity still depends on its controllers for the exercise of its organized economic activity of a business nature. Thus, it will be argued that the liability of the legal person, in the original molds proposed by PLS n.° 236/12, implies recognizing the need for doctrine and jurisprudence to focus on the normative gaps and the borders of the hypotheses of imputation of the criminal offense to the moral entity, with the objective of expanding the perspective of the techniques of the criminal liability imputation system of legal entities.