Tipos de mera transgressão administrativa no direito penal econômico brasileiro

Abstract

The current criminal regulation regarding economic activities has used criminal types represented by open laws, in which only a general duty to comply with administrative determinations is indicated. In such typical structures, it is attributed to infralegal normative acts the complementation of the description of the prohibited conducts and, therefore, the definitive constitution of the content of the incrimination. This normative strategy has the merit of allowing a faster adaptation of the legal system to the marked changes that socioeconomic activities are undergoing. On the other hand, it is an option that demands greater care for its adaptation to criminal guarantees. By identifying their main common features, we term such structures as types of a “mere administrative transgression.” By presenting the main conceptual aspects of the normative references used in their normative statements, in particular, the blank elements of the criminal law and the elements of overall assessment of the fact, its wide use in Brazilian economic criminal law is pointed out. It is shown that it is the kind of normative reference used in the drafting of the law that will guide which type of administrative legal resource will result from it, given that the latter will indicate the degree of dependence between criminal law and the established administrative law. Dogmatic criteria to be met by the types of mere administrative transgression are proposed, in order to reconcile them with the principle of legality, and demand a rationally justified criminal intervention, represented by a prior, written, strict and certain law. By recognizing the context of normative overlap characteristic of such typical structures, criteria are indicated for the distinction between administrative infraction and criminal injustice. When analyzing the aforementioned types from the Principle of Ne Bis In Idem, it is suggested that their application should take place in a way that integrates both administrative and penal sanctioning spheres, thus avoiding an unnecessary double sanction and overcoming the affirmation of an absolute independence between such spheres. From the criticism about a criminal law of speeds, of intervention law or sanctioning administrative law, as regulatory alternatives to the criminal expansion resulting from the prediction of administrative types, an approach to the theme is proposed from the perspective of the theory of responsive regulation, aiming to rescue the premises of a subsidiary economic criminal intervention.