Limites hermenêuticos à criminalização pelo delito de estelionato contra a seguridade social

Abstract

This master's thesis investigates the process of secondary criminalization for the crime of embezzlement (art. 171, criminal code), increased because it is committed against bodies of the social security system (§ 3º). The objective of the research is restricted to conduct practiced on an individual basis, pproaching regular beneficiaries of the system, without greater criminal expertise. Even though it is clear that, in these cases, there may be irregularity, illegality, intent and damage to the treasury that give rise to a state reaction, the question is whether criminal law is the appropriate means to this end. The hypothesis adopted is that the criminalization of these cases represents a hypertrophy of punitive power to resolve conflicts of little relevance that could be dealt with by other branches of law, such as civil and dministrative law. The research has a hermeneutic approach, seeking to understand and criticize the cognitive paths for the construction of the concrete criminalization judgment in the light of the constitutional foundations of the state's right to punish (jus puniendi). The methodology adopted is a review of legal and interdisciplinary literature and a study of legislation and case law, along the lines of documentary research, with an emphasis on judgments from the Superior Court of Justice. It starts from the premise that criminal dogma cannot be understood in isolation, and that it is essential to understand the social, systematic and political-criminal context of incriminating criminal law. The investigation begins with an epistemological debate on the notion of white-collar crime and its applicability to crimes committed by people from economically underprivileged classes. Next, elements are analyzed for the formation of a restrictive criminal-constitutional hermeneutic and its application to the crime of embezzlement. We then move on to examine the configuration of the crime of fraud against social security, seeking to understand the structure of this system, the social nuances of fraud against it and the decriminalizing perspectives in the light of the principles of subsidiarity and insignificance. Moving on to a more practical analysis, we examine the typical nature of fraud when practiced in judicial and administrative proceedings, problematizing the applicability of criminal law from this perspective. Finally, an analysis is made of the configuration of fraud by withdrawing the FGTS outside the legal hypotheses, a sui generis situation in which the application of the principle of subsidiarity to the subsumption of the elements “illicit advantage” and “damage to others” of the criminal type is discussed. In the course of this investigation, we conclude that the hypothesis initially put forward is confirmed, verifying that there are several autonomous and complementary aspects that lead to the non-criminalization of the list of conducts outlined here.