In general, legal professionals have greater knowledge of crimes defined in the Penal Code and in scattered or extraordinary penal laws, such as the Law on Heinous Crimes (Law No. 8.072/1990) or the Maria da Penha Law (Law No. 11.340/2006). These topics are mandatory subjects covered in law school.

The existence of criminal offenses within non-criminal legislation, such as the Consumer Protection Code (Law No. 8.078/1990), is still widely debated among students and professionals. 

However, studies on Economic Criminal Law and, consequently, discussions about economic crimes have been growing in Brazil.

But what does Economic Criminal Law deal with? And what are economic crimes? Is this topic very far removed from our reality?

Let's understand a little more about this area of ​​law that is gaining ground in the courts and in day-to-day legal practice.

Economic Criminal Law and the economic order: what is it all about?

To learn more about economic crimes, it is necessary to at least study what the subject matter of Economic Criminal Law is.

As the name itself suggests, this field stems from the relationship between Law and Economics.

In Brazil, it was Law No. 1.521/51 , regulating Article 148 of the 1946 Constitution , that expressly addressed the abuse of economic power. The national legislature preferred to deal with economic criminalization primarily through special laws.

Some examples are:

• 1.521/51 (crimes against the popular economy);
• 7.492/86 (crimes against the National Financial System);
• 8.137/90 (crimes against the tax system, the economic system, and consumer relations);
• 8.176/91 (Types of crimes against the economic order);
• 9.605/98 (environmental crimes):
• 9.613/98 (money laundering crimes);
• 10.028/2000 (crimes against public finances);
• 10.303/2001 (crimes against the capital market);
• 12.683/2012 (new money laundering legislation); and
• 13.254/2016 e 13.428/2017 (repatriation).

We can see that most of the laws were enacted after the promulgation of the 1988 Federal Constitution . This is because, despite the free exercise of economic activity, the Constitution mandates that initiative must give way to state intervention at certain times.

How does the State regulate the economy? Through oversight, incentives, and planning of economic activity and, in some cases, by directly exploiting that activity. The pillars of State action are outlined in articles 170 to 181 of the Federal Constitution.

That being said, we can better understand what economic order and Economic Criminal Law are.

According to Prado, the strict concept of economic order as an object of legal protection is the legal regulation of state intervention in the economy.

Economic Criminal Law, in turn, can be described as a means of protecting a legal object that aims to ensure the security and regularity of the economic structure of a given social context.

In other words, and considering the lessons of Sousa and Araújo: Economic Criminal Law directly protects the fair balance of the production, circulation, and distribution of wealth among citizens. It is a social control of the market according to the economic model that has been adopted.

And what are the main economic crimes?

There are several laws that address economic crimes, each with various types, but here we will list only five types of crimes that we consider key to understanding the system:

a) crimes against the tax system – Law no. 8.137/90:

Article 1 refers to the crime of tax evasion stricto sensu . The conduct described includes the suppression or reduction of taxes in a cunning or fraudulent manner.

• omitting information, or providing false statements to tax authorities;
• To defraud tax authorities by inserting inaccurate information or omitting any type of transaction in a document or book required by tax law;
• To falsify or alter an invoice, bill, duplicate, sales slip, or any other document relating to a taxable transaction;
• to prepare, distribute, supply, issue or use a document that one knows or should know to be false or inaccurate;
• To refuse or fail to provide, when required, an invoice or equivalent document relating to the sale of goods or provision of services actually performed, or to provide it in violation of the law.

The penalty is imprisonment for 2 to 5 years, and a fine, which is proportional to other frauds foreseen in Brazilian legislation, such as property fraud and other types of falsification.

The penalty may be increased if (i) it causes serious harm to the community; (ii) it is a crime committed by a public servant in the exercise of their duties; or (iii) the crime is committed in relation to the provision of services or the trade of goods essential to life or health.

b) crimes against public finances – Law no. 10.028/2000:

The aforementioned Law introduced new criminal offenses into the Brazilian legal system, both in the Penal Code and in Decree-Law No. 201/67. A chapter on Crimes against Public Finances was added to the Penal Code, with the aim of protecting the Public Administration.

One example is the crime of contracting a credit operation, contained in article 359-A: ordering, authorizing or carrying out a credit operation, internal or external, without prior legislative authorization.

The penalty is imprisonment for 1 to 2 years.

According to the first paragraph, the same penalty applies to anyone who orders, authorizes, or carries out a credit operation, internal or external, (i) without observing the limit, condition, or amount established by law or by a resolution of the Federal Senate; or (ii) when the amount of the consolidated debt exceeds the maximum limit authorized by law.

c) crimes against the economic order – Law no. 8.176/91:

Article 1 begins by indicating what constitutes a crime against the economic order:

• To acquire, distribute and resell petroleum derivatives, natural gas and its recoverable fractions, ethyl alcohol, hydrated fuel alcohol and other liquid fuels, in violation of the regulations established by law; and
• Using liquefied petroleum gas in engines of any kind, saunas, boilers and pool heating, or for automotive purposes, in violation of the regulations established by law.

The penalty for this type of crime is imprisonment for 1 to 5 years.

d) crimes against the National Financial System – Law No. 7.492/86:

Also known as White-Collar Crime, since its types are practiced by government professionals and the corporate world. 

Some of the crimes covered include:

• Art. 2: To print, reproduce or otherwise manufacture or put into circulation, without written authorization from the issuing company, a certificate, warrant or other document representing a security or negotiable instrument:
• Art. 4: To fraudulently manage a financial institution:
• Art. 7: To issue, offer, or trade, in any way, securities or negotiable instruments:
  • I - false or counterfeit;
  • II - without prior registration of issuance with the competent authority, under conditions that differ from those stated in the registration, or irregularly registered;
  • III – without sufficient backing or guarantee, as defined by law;
  • IV - without prior authorization from the competent authority, when legally required;
• Art. 9: To defraud the tax authorities or the investor by inserting, or causing to be inserted, a false statement or one that differs from what should be stated in a document proving investment in securities or other financial instruments.

(e) money laundering crimes – Laws no. 9.613/98 e 12.683/2012:

Law No. 12.683/2012 amended Law No. 9.613/98 to make the prosecution of money laundering crimes more efficient.

The amended Article 1 establishes as a crime concealing or disguising the nature, origin, location, disposition, movement, or ownership of assets, rights, or values ​​derived, directly or indirectly, from a criminal offense.

The penalty is imprisonment for 3 to 10 years, and a fine.

However, the same penalty applies to anyone who:

• to conceal or disguise the use of assets, rights or values ​​derived from a criminal offense
  • I - convert them into legitimate assets;
  • II - acquires, receives, exchanges, negotiates, gives or receives as collateral, keeps, holds in deposit, moves or transfers them;
  • III - imports or exports goods with values ​​that do not correspond to their true value.
• uses, in economic or financial activity, assets, rights or values ​​derived from a criminal offense; and
• participates in a group, association, or office knowing that its primary or secondary activity is directed towards the commission of crimes foreseen by law.

How can I apply this knowledge? How can IDP help me?

In recent years, we have seen several practical cases of the involvement of lawyers, the Public Prosecutor's Office, and the Judiciary in operations launched by the Federal Police that led to plea bargains and leniency agreements.

These two instruments are most commonly used by practitioners of Economic Criminal Law to assist the Justice system in investigations aimed at mitigating sanctions that will be applied for illegal acts, if confirmed.

If you are interested, want to work in the field, or further your knowledge, IDP offers an LLM in Economic Criminal Law , with the most renowned faculty and at the best legal institution in the country.

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References

PRADO, Luiz Regis. Economic Criminal Law . 9th ed. Rio de Janeiro: Forense, 2021.

SOUZA, Luciano Anderson de; ARAÚJO, Maria Pinhão Coelho. Economic Criminal Law: General Part and Special Criminal Laws. 2nd ed. São Paulo: Thomson Reuters Brasil, 2022.