Corrupção passiva: delimitação do desvalor da conduta e alcance do tipo penal

Abstract

The study aims to delimit the contente of the devaluation of the conduct prohibited by the crime of passive corruption, provided in article 317, of the Brazilian Penal Code, with the obctive of indicate criteria that allow verifying the scope of penal type, as well as analyze the adequacy of current issues related to public corruption. For this, the following aspects are examined: historical approach to current contexts of passive corruption; doctrinal understandings related to the criminaltype, judgments made by the Supreme Federal Court and the Superior Court of Justice in criminal action involving the crime; as well as the examination of the legal treatment conferred by international diploms ratified by Brazil, and by foreign law, notably Portugueses, Spanish and German. At the end, the premises necessary for the interpretation of the penal law are highlighted in view of the current legislative option, the legal asset that is considered protected by the criminal law is indicated, the criteria to be used in practical cases are listed, to verify the subsumption of conduct to the penal type. With the support of the outlined parameters, the contours of situations that envolve the creation of a climate of permeability with the public officialare analyzed, and questions regarding the criminalization of illicit enrichment and capitulation, in a specific criminal type, of the political corruption.