A criminalização da pessoa jurídica por crime de corrupção: autorresponsabilidade criminal da empresa na sociedade de risco

Abstract

In the current panorama of capitalist and contemporary societal development, there is a noticeable disconnect between corporate interests and social responsibility. In this context, the role of Criminal Law becomes highly significant, as it functions as a normative reinforcement of the organizational duties and self-monitoring obligations of business activities carried out by legal entities. This work starts from the hypothesis that entrepreneurial activity is essential to national development (Article 3, II of the Brazilian Constitution), and that even legal entities engaged in lawful activities do not cease to be, due to their complex structures, environments conducive to the commission of crimes such as corruption. The corporate environment thus becomes a space of dangerous freedom in a world where causal relationships are increasingly replaced by relationships of risk. The solution proposed by the research is a revision of contemporary criminal policy to enable the criminal liability of private legal entities through the construction of a specific criminal offense of corporate corruption. The work also seeks to overcome criticisms related to the admissibility of holding legal entities criminally liable by proposing an alternative solution to those traditionally debated. The research question arises from the constitutional provision allowing for the criminal liability of legal entities, despite the absence of explicit mention of the crime of corruption—even though it constitutes a crime against the economic order (Article 173 of the Constitution). The general objective of the study is to demonstrate that corruption stemming from business activities—especially those carried out by large corporations—causes severe and immeasurable damage, and serious harm to human, social, and economic development. These are highly relevant and collective interests that must be vigorously protected, including through the development of a Theory of Intolerance to Corruption. In this context, Criminal Law, as a dissuasive and justice-guaranteeing branch of law, would be the only mechanism capable of demanding regulated and controlled behavior from moral entities with respect to both permitted and prohibited risks. This ideal, in turn, has generated numerous dogmatic challenges, ideological confrontations, and political-criminal controversies, which this research intends to address by demonstrating that it is possible to overcome the setbacks of the outdated current model through the paradigm shift brought by contemporary criminal policy.