Distinction between Perpetrator and Accomplice in corporate crimes: an analysis of the differentiating theory in High Courts (1996-2022)

Abstract

This study analyzed the application of the differentiated theory of co-perpetration in the attribution of economic criminal liability to corporate executives. The objective was to determine the criteria employed by the Brazilian Supreme Federal Court (STF) and the Superior Court of Justice (STJ) in classifying individuals as either principals or accomplices in such crimes. To this end, 96 rulings from these courts were selected, utilizing specific keywords and analyzing precedents between 1996 and 2022. The research revealed a lack of clear and consistent criteria for this classification, as the scope of criminal liability in corporate crimes, a critical issue for determining the extent of the norm and the classification of individuals as principals or accomplices, is not adequately addressed in the majority of the analyzed decisions. This gap is exacerbated by the improper use of concepts and criteria from the Theory of Control of the Act (“Tatherrschaft”) in the criminal liability of corporate executives, especially in lower courts. Such improper use has necessitated corrective actions by the STF and STJ. Additionally, the study identified Criminal Action nº 470 as a significant temporal milestone, whose influence on the application of the aforementioned theory was also examined. It concludes that there is a pressing need for a review and standardization of attribution criteria to ensure the fair and accurate application of economic criminal law within the corporate context.