(In)aplicação do princípio da insignificância aos crimes contra a ordem tributária e ao crime de apropriação indébita previdenciária: uma análise jurisprudencial comparada

Abstract

Brazilian Criminal Law is undergoing a crisis, due to the fact that the penalty does not fulfill its role of resocialization, as well as the existence of criminal selectivity, both in the process of creating the criminal law, and in its interpretation/application by the Institutions of the Criminal Justice System in the absence of an adequate legal-criminal dogmatics. In parallel, in Brazil, the principle of insignificance is applied, de-characterizing as a crime those conducts that, although formally typical, injure in a negligible way the legal interest protected by the criminal law. Within this scenario, there is a jurisprudential inconsistency regarding the application of this principle to the crime of social security misappropriation (art. 168-A of the Penal Code). The Federal Supreme Court (STF) has the understanding for the non-application of the aforementioned principle, stating that the crime of art. 168-A of the Penal Code protects a supra-individual legal interest. Nevertheless, in national jurisprudence there is a consolidated understanding by the application of the principle of insignificance to crimes against the tax order (Law 8.137/90), even if these crimes protect a supra-individual legal interest, provided that the amounts do not exceed the level of R$ 20,000.00 (twenty thousand reais). The general objective of this research is, therefore, to analyze the inconsistency in the (in)application of the principle of insignificance to crimes against the tax order (Law 8.137/90) and to the crime of social security misappropriation in the jurisprudence of the STF,

STJ and TRF1 as a process of interpretation carried out in defiance of an adequate juridical- penal dogmatic and that denotes a criminal selectivity. For that, the inductive approach

method with a quantitative-qualitative bias was used. As for the methodological procedure, the comparative method was used. Finally, the following research techniques were applied: bibliographic research, document research and thematic content analysis. As a result, this research found, under the comparative bias, from the analysis of the judgments, that the application of the principle of insignificance by the courts under study reflects an inconsistency with the idea of supra-individual legal interest protected by the analyzed crimes, as well as a legal dogmatic-inadequate criminal, insofar as it does not respect the premises established in the legal system.