Entre a inadimplência e o crime tributário do art. 2º, ii da Lei 8.137/1990: estudo sob uma perspectiva crítica

Abstract

Based on the model of a biphasic process of criminalization, in which the first phase corresponds to the selection of typical conducts and protected legal assets, and the second phase to application of the established penal norm, this study seeks to investigate the moment of incidence of the criminal law of art. 2, II of Law 8.137/1990, thus differentiating mere default towards the tax authorities – object of tax administrative law –, of the crime against the tax order – object of criminal protection. In a second moment, the search is to analyze the interpretation carried out by the Superior Courts, as well as by the scientific community about the scope of action of criminal tax law in this case, if they effectively illustrate the announced inequality in the penal system. The result reached is that the main element differentiator (but not the only one) between default and the crime defined in the first phase of the criminalization process is intent. However, when the effective application of the norm criminalization (second moment of the criminalization process), the conclusion was reached that there a trend of emptying the penal norm, as well as the sterilization of its effects, such as, for example, the extinction of the liability for payment at any time (even after the final and unappealable decision) and the differentiated application of the principle of insignificance, thus denoting the true face of criminal law as a right essentially uneven in its application