Responsabilidade penal da pessoa jurídica : um novo direito penal e a solução no compliance criminal

Abstract

The initiative of this work is justified due to the topicality of the criminal liability of the legal entity, which is undoubtedly a debate that encompasses the entire West and is a trend. We are living in Brazil the same debate that is taking place in Europe and the Americas. And around here, we are in a less comprehensive field of accountability than many countries in Europe. We have no doubts that criminal law is based on subjective responsibility, that is, willful misconduct. When seeking to establish a conscience and a will to act in a fictitious entity, we bump into the first obstacles that are defended by some scholars who agree with this perspective. On the other hand, we are constantly faced with what we understand to be a lethality of the institution. The awareness of the institution, however utopian this may be, today, increasingly, it is perceived that large corporations are no longer just the sum of the opinions of their managers, but they start to have an awareness and an almost personality distinct from those themselves managers. The institutional change is very clear because the understanding, of acting and how to behave is very evident, this being natural. Anyone who joins a multinational, or even a national corporation, whether a contractor or a concessionaire, has a personal conscience, but becomes part of a collective that is increasingly treated with some independence, however absurd this may be. affirmation. And because of that, in addition to the biggest argument that is the difficulty of individual accountability in many situations, the difficulty in demonstrating the causal link between the manager and the result of the company's activity, is that there has been more and more thought of expanding legislative accountability of the legal entity. Therefore, this reality is constantly evolving among courts, scholars and the academic world, so that there are opposing positions stating that it is impossible to assess the intent of the legal entity, then the phase of double imputation has passed, which in a way, the uproar of impunity continued, given the impossibility, in most cases, of proving the conscious adherence of managers to the final responsibility of an environmental damage, for example, being the limit that the STJ understands until today for the liability of the legal entity. Is the solution to all this a new criminal law in convergence with criminal compliance?