Reflection about the criminalization of illicit enrichment in Brazil: an analysis of the constitutional legitimacy and criminal dogmatic of the law project 4850/2016

Abstract

This article aims to critically aboard the criminalization of illicit enrichment in Brazil, taking as a starting point the typical description proposed in the Law proyect 4850/2016, currently in legislative process, and subjecting it to constitutional trial of proportionality and the theory of “legally protected interest”, in order to scrutinize the legitimacy of a criminalization in the proposed molds. For this, the study that concerns us here is divided into two large parts. In the first one, we try to contextualize the problem, presenting the origin and the justification of the Law Project 4850/2016, as well as the proposed wording for the criminal type. In the second, it deepens profusely in the arguments against its criminalization. This section, for methodological reasons, was subdivided into two groups: the transcendent arguments and the arguments immanent to the Brazilian legal system. In this way, the first sub-section focuses on examining the foundations of the criminalization of illicit enrichment based on foreign legislative experience, seeking to understand the obstacles faced and the possible solutions put forward - with special attention to the lessons learned. they come from the Portuguese case. Subsequently, it goes on to consider the objections of a constitutional and criminal dogmatic nature, specifically within the Brazilian legal order. The discussion implies, therefore, the examination of the legislative proposal from the constitutional point of view, according to the proportionality test. In a second moment, we continue with the analysis of the legitimacy of criminalization in light of the theory of the legal right, questioning what would be the material basis of the crime, assuming that the criminal type is approved in the terms and contours raised in the Law proyect 4850/2016. Finally, it is concluded that it is not feasible to legitimize and legitimize the classification of illicit enrichment in Brazil as long as the description suggested in legal instrument is maintained.