Proteção penal deficiente nos crimes contra a ordem tributária: necessidade de readequação do sistema punitivo para a efetiva implementação do estado democrático de direito / Deficient criminal protection against tax crimes: the need of readjustment at the punitive system to an effective implementation of the democratic rule of law

AUTOR(ES)
DATA DE PUBLICAÇÃO

2009

RESUMO

The purpose of the present essay is to produce a critical analysis of the criminal system for transgressions against tax laws, reputed as lenient and deficient, and to demonstrate the need of a readjustment, in order to adapt it to the current constitutional order, indications the appropriate changes. Beginning with a review on the origins, evolution and features of the Democratic Rule of Law, adopted on the Federal Constitution of 1988 and rooted on values of democracy and human dignity, this essay will demonstrate the obsolescence of the Criminal Law and the inconsistency between it and the Federal Constitution, considering its inefficiency on fighting felonies against the rights of the society, as tax crimes. After such prior conjecture, I propose a restructuration of the criminal system by electing the most relevant legal goods, whose materiality derives from the Constitution, and the bestowed criminalization powers, i.e. the mandatory punishment of those human actions that harms collective goods of social importance, in the light of fundamental rights declared by the Federal Constitution. Within this scope, while selecting what should or shouldnt be penalized and how such penalization should be performed, its presented a study about the proportionality principle and its twofold availability: the prevention against excesses, as a way to guarantee individual freedoms (negative actions of the State), and prevention against defective protection, in order to assure the proper State guardianship on restraining and punishing harmful actions against important legal goods (whose protection comes from criminalization powers). After that, comes a specific assessment of crimes against the economy (genre) and, in more details, of tax crimes (specie), which harm legal goods of utmost importance for society and hinder the achievement of the social justice aimed by the Democratic Rule of Law, which is characterized by the implementing of individual, social and collective rights. Finally, I prove that the current protection system against tax crimes is far from being efficient, mostly because of unjustifiable legal benefits granted to offenders, which are expanded by jurisprudence. This can be exemplified, for instance, by the extinction of punishableness for tax evaders, although unrepentant, after the enforced payment; as well as by the indulgence of the State, when refuses to file criminal charges against the tax evader, provided that a settlement is signed, or even by allowing the administrative discussion of the debt. These facts lead to the conclusion that the punishment system for such felonies contradicts the guidelines of the Constitution and need to be reconsidered, in order to allow an effective establishment of the Democratic Rule of the Law

ASSUNTO(S)

ordem tributária direito penal -- brasil democratic rule of law princípio da proporcionalidade macrocriminalidade mandados de criminalização defective protection proporcionalidade (direito) -- brasil criminalization power proportionality principle macrocriminality criminal legal good bem juridico -- brasil direito penal proteção deficiente bem jurídico penal estado democrático de direito tax laws crime fiscal -- brasil

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