A reabilitação criminal da empesa

Abstract

The objective of the thesis was to scientifically analyze the possibility of criminal rehabilitation of the company, from a legal perspective, having as parameters the constitutional principle of equality, the theories about the purpose of the criminal sanction and the integration of the legal system by analogy. The study assumed that the restoration of the criminal liability of legal entities in Brazil was not the result of a scientific evolution, but of a political choice made by the 1988 Constituent Assembly. Therefore, its proclamation in the Constitution was not based on solid and compatible theoretical foundations. The crux of the problem lies in the instrumentalization of criminal law, originally designed to be applied to individuals, to punish companies. In this context of dissonance, there are three main dogmatic obstacles to the criminal liability of collective entities: the incompatibility between the objective hypothesis and the immaterial nature of legal entities; the antagonism between the subjective hypothesis and the particularities of moral beings; the incompatibility between the notion of culpability and the disembodied nature of collective entities. Criminal rehabilitation is a fundamental step in the mechanisms of social harmonization of criminal law, but there is no specific provision in the Brazilian legal system for rehabilitation for convicted moral entities. In order to reach the conclusion of its applicability to the company, it was necessary to demonstrate that the legal entity has a moral patrimony that deserves to be protected, since it represents another dimension of the personalities of the natural persons who are part of it. The application of the analogy is justified, especially in view of its unquestionable "favor rei" character. During the process of "corporate resocialization", thus understood as the regeneration by the organic improvement of the criminally sanctioned company, a prerequisite for criminal rehabilitation, the hypothesis of compliance programs functioning as a demonstrative condition of the purpose of correcting the company's course and organizational defects was investigated, capable of signaling the fading of corporate culpability. In addition to this transitory integration of the legal system by analogy, the study points out that it is advisable to establish a specific and coherent legal framework for corporate criminal liability, including for the regulation of rehabilitation. From this perspective of criminal policy, the transversality of the criminal responsibility of moral entities with criminal compliance was idealized as an impulse to the culture of repulsion to corporate crime.