A problemática da insignificância em direito penal econômico

Abstract

Characterized as one of the most problematic and complex dogmatic discussions in the Criminal Law, the insignificance principle is shown as a reflex, in the juridical-criminal scope, from the juridical-constitutional principle of proportion, representing a negative judgment of proportion in its strict sense, founder of the prohibition of excess’ clause. It represents a clear appeal to the ponderation of fundamental rights to be concretized in the concrete case. The insignificance, specifically as a juridical-criminal problem, retraces its genesis to the maxima minima non curat praetor, having a direct relation to the idea of crime with significant material offense to the tutored juridical-criminal asset. However, due to the lack of criteria when it comes to properly basing it, it is possible to see an unjustified negative to its application when it faces juridical assets supra-individuals, under the unsubstantial argument of remaining an impossibility of concreting those. This way, from the wrong identification of the tutored juridical asset by the criminal norm, several conducts without a minimum offensive character are set as criminal illicit, from the mere disrespect to the norms and administrative rules, noticeably in the scope of criminaleconomical law. In the current time, it is shown as cornerstone of criminal law the notion of crime as a significant material offense to the juridical-criminal assets, noticeably in a legitimized Democratic State of Law. And that represents nothing else than the scientific progress of one of the most important elements of crime, the type, denoting the transposition of ideas merely formalists and positivists (formal type), to a new paradigm represented by the idea of offense to juridical assets (material type), becoming an indispensable hypothesis (constitutionally) founder of a legit criminal illicit. In other words, the offense to a juridical asset starts to serve as a constitutional limit guided by the juridical-criminal intervention. In the specific area of criminaleconomical law, the insignificance needs major elements for its right gauging, and for this, it urges to outline some criteria that serve as this aspiration. It is necessary a previous identification and concretization of the supra-individual juridical asset tutored by the criminal norm, adding significance analyzes of the offense under the optic of devalue from the result produced, so that it is possible to understand the effective criminal dignity. Finally, in the scope of economical crimes, it is necessary a concrete differentiation between the administrative illicit (fiscal/ exchange) and criminal, denoting that the rules expedited by state agencies of control don’t serve as a limit to demark the space of what is significant juridical-criminally.