The preventive purpose of pecuniary penalties to the legal entities in the environmental sphere: an approach based on the Economic Theory of Crime

Abstract

The article aims to study the compatibility of the assumptions of the Economic Analysis of Law with the purposes of the penalty applied to legal entities, as an instrument of environmental sustainability, from the point of view of the joint science of criminal law. The criminal liability of legal entities, despite all the doctrinal controversies it still raises in Brazilian positive criminal law, is a reality recognized by the legal-constitutional order and, furthermore, a political-criminal commitment made by Brazil on the international stage, especially as a measure to promote environmental sustainability that makes crime prevention a guiding principle. In this context, it is assumed that, under the influence of the Economic Theory of Crime, the penalties applied to legal entities in the environmental sphere should incorporate preventive purposes of a pecuniary nature. The research uses the deductive method and applies the bibliographical review technique with an emphasis on national and foreign doctrines, in order to affirm that the use of the postulates of the Economic Analysis of Law, as a theoretical instrument aimed at crime prevention within the scope of environmental criminal law, may be a possibility for tackling the problem of the imputation deficit in the face of corporate crime. In fact, attempts to prevent this type of crime are timely and necessary, given the high potential for social damage it entails. This debate, however, must be essentially critical, weighing up the possible positive and negative points of comparative experience in the continental European, Latin American and North American traditions.