O crime tributário de descaminho

• Ano de defesa: 2011
• Autor(a) principal: Scandelari, Gustavo Britta
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Palavras-chave em Português: Crime fiscal; Direito penal
• Link de acesso: http://hdl.handle.net/1884/25498

Abstract: The main objective is to demonstrate the legal viability of assuring, to the defendant charged with smuggling, the same rights that are already available to the defendant charged with tax evasion in general. This effort takes in special account, here. the requirement of previous judgement of the administrative matters and the possibilíty of extinction of the punshability by repairing the damage. Contrary literature generally indicates as the main obstacle the absence of legal basis - what allows its classifícation as posilivist. The globalized reality of today recommends the study of the problem by an interdisciplinary approach. attentive to tributary and customs legal details, which implies the coherent understanding of the system, the respect to the possibility of judicial review and the overcome of this formalistic impediment. In this context, it is convenient to review specific criminal principies and to adopt them as safe criteria to contain and to reduce the administrativization of the criminal law based on tax, phenomenon that, in fact, is the very reason for the criminalization of tax evasion. Still, because it translates greater guarantee to the defendant, it is recommended the understanding of the previous end of the fiscal proceedings not as a punshability condition, but as a condition of action, in the modalities of apparení criminality and fair cause', for the same reason, not only the tax payment, but also the compensation for damage - ampler hypothesis, that contemplates the tax payment and the application of the forfeiture and the fine penalties - should be seen as motives for the exlinction of the punshability for smuggling. This theoretic adjustment is also justified because of the legal uncertainty that surrounds the entire academic production referring to the objective conditions of punshability. The research of the general characteristics of ali tributary crimes, allied to the study of the histórica! background of smuggling and tax evasion prosecution in Brazil, indicates that there are no theoretical or practical impediments to the equation proposed here, while the contrary positions present themselves as untenable. As this is a customs tax crime, it is indispensable a brief incursion into the rules of the administrative proceedings that corresponds to Treasury loss and underpricing hypothesis, both factual aspects that any smuggling charge must. necessarily, describe with minimally acceptable evidence. which may only be represented (or not) by the final administrative decision. If the sanction imposed administratively for the customs crime is satisfied - regardless of whether it is the constitution of a credit, the penalty of forfeiture, or the fine - the tax loss will be repaired and, automatically, the punshability of the smuggling crime will be extinct.