Influence Peddling and Other Crimes
Influence peddling is the illegal practice of a person to take advantage of their privileged position within a company or entity, or its connections with people in authority to obtain favors or benefits for third parties, usually in exchange for favors or payment.
It is one of the crimes committed by individuals ( entrepreneurs and politicians in Brazil ), mainly against the public administration in general. Is to solicit, demand, charge or gain to themselves or others, advantage or promise of advantage (as if it were an investment ), on the pretext of influencing an act committed by a public official in performance of duties. The penalty for this crime is imprisonment from 2 to 5 years and fine. The penalty is increased by half if the agent claims or implies that the advantage is also intended for the employee.
See Article 332 of the Penal Code.
Influence peddling is the illegal practice of a person to take advantage of their privileged position within a company or entity, or its connections with people in authority to obtain favors or benefits for third parties, usually in exchange for favors or payment.
It is one of the crimes committed by individuals ( entrepreneurs and politicians in Brazil ), mainly against the public administration in general. Is to solicit, demand, charge or gain to themselves or others, advantage or promise of advantage (as if it were an investment ), on the pretext of influencing an act committed by a public official in performance of duties. The penalty for this crime is imprisonment from 2 to 5 years and fine. The penalty is increased by half if the agent claims or implies that the advantage is also intended for the employee.
See Article 332 of the Penal Code.
Presented understanding that one should have the heading and first paragraph of Article 327 of the Penal Code, passed the general rules of the crime of embezzlement. As is wont to say, the crime of embezzlement is provided for in Title XI of the Special Part of the Code, which deals with crimes against public administration. As we speak, the administrative law is the branch of public law whose rules provide for the function and on the administrative organization of the state, ie, is the set of legal rules have on government.
The Government presents its concept in two areas: objective and subjective. In the objective sense, is as immediate and concrete activity that the state develops under the legal regime of public law, for the achievement of collective interests. In the subjective sense, appears as the complex of organs, agents and legal entities to which is assigned by law, the exercise of administrative function of the state.
The Penal Code, as known, is highly focused on the application of sanctions to individuals, ie people with personality and their own ability and rights-holders and legal obligations.So convenient to stress that the active subject of the crime of embezzlement can only be individual, so that comes in handy the concept of public servant above. In the happy definition of teacher Di Pietro (2006, p. 499),”public official is any individual who provides services to the State and legal entities of indirect administration” That is, public and every human being who is exercising a public function. Using the explanation given by Justen Son (2005, p. 567-568) to the above-established concept, it is observed that the public official must necessarily be an individual, which will externalize the state.
Sets the current second paragraph of Article 327 of the Criminal Code because of an increased penalty for public officials: those who are not gazetted (ie: occupants of commissioned positions or positions of trust) will have increased the penalty when a third of practice the crimes defined in the current Chapter I, which deals with crimes committed by public officials against the administration in general.
Are set out in that Chapter I of Title XI of the Special Section of the Criminal Code crimes that public action is a public initiative, and therefore the organ of the prosecutor to offer to the complaint, or the particular, by complaint, the situation prosecution of private subsidiary of the public in accordance with Article 29 of the Code of Criminal Procedure.
The major duty falls penal tutelage on the morality of public administration, constitutional principle and administrative brought by the heading of art. 37 Largest Law: the principle of morality, public official must conduct public affairs in ethical and honest. Breaking the functional duty of the public official hurts administrative morality.
It should be emphasized also that the embezzlement (both own – art. 312 – and the inappropriate – Articles 313, 313-A and 313-B -) is a crime itself. Thus, the basic circumstances of the crime to communicate to all active subjects of the crime (authors, coauthors, participants) as an express provision of Art. 30 of the Penal Code. Therefore, they are active subjects of general crime in question all those public officials who will make the core of the criminal type, and that that somehow contributed to the consummation of the offense. It is taxable public administration in general and, if the property is private, the owner or possessor of that property will also be taxable.
Capez Fernando (2005, p. 397) notes that it is possible that a public official takes up office, employment or civil service without filling, however, the legal conditions. The cases are brought by Edgar Magalhaes Noronha (1988, p. 211): public servant usurper (accounts for embezzlement in competition with the crime of usurpation of public service) public official who did not speak or do not compromise took office (responsible for embezzlement ) public servant appointed illegally or irregularly (accounts for embezzlement).
There, last but not least, they look at the issue of the office public: it is not civil service, that is, exercised by a public servant, so that those individuals who carry out the function public premium account for misappropriation ( art. 168, first paragraph, II).
Guilherme de Souza Nucci (2006, p. 1007-1008) makes short list of subjects that can be considered public and that they can not be for criminal purposes. According to the author, can be considered: councilors, clerks of justice, notary officials, legal experts, counter hall, mayor, the official auctioneer, student intern, military deputy, can not be considered: trustee of the estate, dative defender, administrators and doctors of private hospitals accredited by the government, lawyer, union leader.
3. Having made these observations, let us analyze the crimes of embezzlement own, respectively, appropriation and embezzlement embezzlement deviation; embezzlement theft, embezzlement of use. And then to inappropriate forms of embezzlement, respectively, embezzlement manslaughter, embezzlement by another error.
The chapeau of Article 312 provides the following types of embezzlement: appropriation and embezzlement. This is what one gets from reading the device: the employee to appropriate public money, valuables or any other movable property, public or private, or diverting it for its own or another’s. Who appropriates to take possession of something, in case of any goods, considered moving the money and values, public or private, that des well the subject of such asset, whether it is holding indirect holder, precisely because of his position , or function, whether or oblivious to their advantage (Bitencourt, 2004, p. 375). Who gives away the very diverse destination that has indirect ownership or possession by virtue of position held, not to care if the benefit itself or others.
Both appropriation and embezzlement embezzlement offenses are in deviation intentionally: the first consistent change in property ownership, the second shift in the purpose that was given to the particular good. Both require the subjective element of special order or special act, appropriating or diverting to their own advantage or another’s. Thus the crime referred to in the chapeau of Article 312 is accomplished at the exact moment of appropriation or diversion of effective and that the public officer holds or possesses in virtue of his position, understood in a broad sense (position, job function, ).
4. The same penalty imposed for embezzlement embezzlement ownership and misuse, or imprisonment from two to twelve years and a fine is applied to the embezzlement theft, under the first paragraph of Article 312, which, in verbis provides: applies to same punishment if the public official, while not in possession of money, value, or well, subtract, or compete to be subtracted, or ascribed to their advantage, using a facility that provides you with the quality of employee. It is observed that the public official must not hold or have possession of money, values or well, Give it worth the ease that gives the position, job or role to have access to such objects, ie, it is not necessary that the agent is in the exercise of his office (in the broad sense).
It is a crime in intent, which does not exempt the special order to act, ie, subtract from or compete for their own advantage or subtraction of others. Thus, the crime in question is consumed at the
exact moment of the effective subtraction of money, property or valuables belonging to the Public Administration.
The third paragraph of Article 312 does not apply to any form of felony embezzlement. In any case, full compensation of damages in such cases, it allows mitigating the incidence of general (Article 65, III, b, of the Criminal Statute). For complete repair before receipt of the complaint, shall the provisions of art. 16 (CP), a cause of reduced penalty. And finally, if full compensation occurs in an appellate headquarters, mitigating the focus of the innominate art. 66 of the Criminal Code (Capez, 2005, p. 405).
5. The embezzlement of use, which is liable to confusion with the above types of embezzlement, not a crime, as a rule, because atypical. However, there are curious exception in force today. Decree-Law 201/67, in its art. 1, II, provides as follows: are crimes of responsibility of municipal mayors, subject to the judgments of the judiciary, regardless of the pronouncement of the City Council, be used, inappropriately, on their own benefit or others, property, rent or utilities.By establishing the paragraphs: that crime is an action of public initiative, and is punishable with imprisonment from two to twelve years, so that the final conviction entails the loss of office and disqualification for five years to exercise for public office or function, elective or appointment, subject to civil damages for the damage caused to public property or private.
We consider that such a device was not approved by the Constitution of the Federative Republic of Brazil in 1988, considering that affront the constitutional guarantee of equality, in the case, among the political actors. In this lesson the teacher always Hely Lopes Meirelles (1997, p. 74), political agents are those individuals who are at the summit of power, so today we present the classification: the President, State Governor and Mayor, each with their respective immediate deputies and assistants, secretaries of State and Ministers, Deputies, Senators and Councillors. This classification is preferred because “the idea of political agent binds, inextricably, to the government and the political function, the idea of giving the first body (subjective aspect), and the second activity (objective aspect) “(Di Pietro, 2006, p. 500). Therefore, atypical figure of embezzlement of use, even in the case of municipal mayors.
6. Treated malicious forms of crime of embezzlement, the analysis we guilty of embezzlement, which is provided in the second paragraph of Article 312. Criminal offense that occurs when the public official compete, through their own fault (malpractice, recklessness or negligence), for others to appropriate, divert or subtract money, property or assets belonging to the Public Administration. The only public official will respond in this mode if the felony committed by third consummate, as it does not attempt to admit the crimes guilty (Capez, 2005, p. 404).
The penalty for this type of embezzlement, is imprisonment for three months to a year, which is to say that it is a crime of lower offensive potential, competence for processing and prosecution of the Special Criminal Courts.
It should be noted the third paragraph of Article 312: if guilty of embezzlement, repair the damage, if the preceding sentence without appeal extinguishes the criminal liability if it is later reduced to half the sentence imposed. Thus, there will be extinction of criminal liability in embezzlement guilty to complete repair of damage if it goes before the final and unappealable criminal sentence, which, however, does not exclude the administrative penalty applicable to the public official. There, on the same device, the forecast of a decline because of penalty, if after the occurrence of res judicata of the criminal sentence there is full compensation for the damage, the penalty will be reduced to its half.
7. Article 313 of the Penal Code provides otherwise inappropriate embezzlement, or embezzlement by another error, which consists of appropriating money or any utility that, in office, received by mistake of others. It is the appropriation of embezzlement said something that took place by mistake (Noronha, 1988, p. 222), considering that “this kind of offense, the employee does not induce the victim in error as the embezzlement, but takes advantage of the error in that it alone focused to appropriate the good “(Capez, 2005, p. 408). Pune is the bad faith of the public official.
The error may be taxable on the thing to be delivered, to whom the thing should be delivered, the obligation which led to delivery (Noronha, 1988, p. 222). However, one must be careful to observe whether the public official (active subject of the crime) caused the error, in which case there would be no effect of Article 313 of the Criminal Statute, but Article 171 or one of the methods of concussion .
By observing the elements of the crime, it is obvious that the material object of the offense on the screen should be movable, is money to be any use. Utility, the lesson of Hungary Nelson (1959, p. 353), “all that is suitable for use, consumption or economic gain or assessable in money.”
Another feature that should be noted refers to the term in office, ie, the active subject of the offense should be exercising his office, employment or public (ie: being in virtue of the office) to make the incidence of such criminal offense. Now, if you are not in office, the agent will carry out public ownership of things that took place by mistake (Article 169 above). Thus, it is now clear that the crimes studied are focused on the professional activity exercised by the individual, and secondarily on their action itself.
The time consumed crime occurs with the effective appropriation of money or utility, and the attempt admissible. The subjective element is just the generic, consisting of willful misconduct in office of the public official from office. The penalty is imprisonment of one to four years combined with a fine.
8. We must treat, as this topic on two new crimes, included in the Special Section of the Criminal Code: the insertion of false data into the information system and unauthorized modification or alteration of information system. These types were introduced by Law 9983 2000: are the electronic peculation or social security. Here we can speak of embezzlement embezzlement, given the ruse used to gain undue advantage: the insertion of false data and unauthorized modification or alteration of information system.
Luiz Flávio Gomes (2001, p. 14) correctly observes that the initial proposal of the bill converted into Law 9.983/2000 turned to crimes against social security, so that the Iter project approval were no changes in sense to extend legal protection to the entire public administration.
9. Article 313-A of the Penal Code provides, in verbis: insert or facilitate, the authorized officer, the insertion of false data, change or delete unduly correct data in the computer systems or database of public administration in order to gain undue advantage to themselves or others or to cause damage. The penalty is imprisonment from two to twelve years and a fine.
The generic fraudulent conduct consists of: a) add (include to record) or facilitate the integration (including allowing others) as false the system or database of Public Administration, b) change (modify) or delete (remove, remove eliminate) the correct data in the system or database of Public Administration. Exemplifies Nucci (2006, p. 982) that such conduct can promote “the payment of social security benefits the person does not exist” or “delete information that any insured died, making retirement continue to be paid normally.” It takes the special order to act, ie to obtain undue advantage (whether or not equity) to themselves or others, or cause damage.
Apparent paradox arises to speak of the normative requirement of the element type. The type of display requires the public official is authorized to deal with computer systems or databases of public administration and that the same public official authorized conduct unauthorized practice (normative element type).
The offense is formal, to unfold with the insertion, alteration or deletion of data in the computer systems or databases in Public Administration.
10. Article 313-B contains the following wording: to modify or alter the official, information system or computer program without permission or request the competent authority. Applies imprisonment of three months to two years, combined with a fine.
The willful misconduct of the public official is to modify (reshape) or change (modify) the information system of government or the computer program used by that without the authorization of the competent authority or without the request of this request. The type in its basic form does not require that there is damage to the Administration, so that if any, will address the cause of increased penalty provided in the sole paragraph of the article in the study: the penalties will be increased by one third to one half if the modification or changes resulting harm to the government or to run.
Note that if the public official to act upon authorization of the competent authority, the conduct is atypical. Thus, it is obvious that it is formal offense, where the consummation will be with the action to modify or change the information system or computer program, so that the offense might burn out with the provocation of damage to government and / or administered.
11. From what has been presented in this small study, we suggest some possible changes in legislation brought by the Criminal Code, in what refers to the following legal provisions: art. 312, art. 313, art. 313-A, Art. 313-B, and art. 327, noting that such devices should be appropriately renumbered.
Before proceeding to the crimes, the Code could bring the definition of public official, or rather, public official, to display the following wording: it is considered public official, for the purposes of criminal law, anyone, even without remuneration, carries position, job or role in public administration in parastatal entity or service provider company, contracted or agreed to the implementation of activity typical of public administration.
Another provision would make the prediction that the current second paragraph of Article 327, read as follows: the penalty will be increased when a third of the active subject of the crimes provided for in this Chapter occupant of commissioned positions or positions of trust, according to Art. 37 of the Constitution.
Article 312 could win the following language: appropriate public official of any movable property, public or private, that has heritage value, that has indirect ownership or possession by reason of position, job or function, or divert you, or someone else for their own benefit. The penalty would remain the same: imprisonment from two to twelve years and a fine.
First paragraph of this Article shall be effective with the following wording: it applies the same penalty provided for in the caput of this Article, if the public official, to avail themselves of this facility that gives you quality, contributes to or subtracts from it is subtracted, their own advantage or another’s, and mobile, public or private, that has heritage value, although this does not have the detention or indirect ownership.
Second paragraph of this Article shall be effective with the following wording: If the public official culpably competes for the crime of another, he incurs the penalty of imprisonment for three months to one year.
Third paragraph would read as follows: just in case the previous paragraph, full compensation for the damage, if res judicata prior to the criminal conviction extinguishes the criminal liability if subsequent to halve the sentence imposed.
Fourth paragraph the figure of the embezzlement would use under the following wording: use the public official, in error because of the position, job or function, or allow anyone to do it, of any goods that have custody or indirect ownership, their advantage or others. Imprisonment from one to four years and a fine.
Article 313 would win the following wording: appropriating the public official, because the position of any utility, such as cash or who has received a spontaneous error of others. Imprisonment from one to four years and a fine.
Article 313-A would read as follows: the public official authorized unduly enter or facilitate the insertion of false information, or to change or delete correct information in the computer systems or databases of public administration in order to obtain undue advantage for himself or others or cause damage. Imprisonment from two to twelve years and a fine.
Article 313-B would be in effect with the following wording: the public official who, without authorization or competent authority request, modify or alter the information system or computer program. Imprisonment of three months to two years and fine.
The single paragraph of the same device would have the following wording: the penalties will be increased by one third to one half if there is damage to public administration and / or the administration.
EXPLORATION OF PRESTIGE
Crime in the screen is consolidated by the fact that the agent requesting or receiving money or any other utility, under the pretext of influence (communicate, inspire, instill, infuse) server in public administration.
Article 357 of the Criminal Code conceptualizes the crime of exploitation of standing as follows:
Article 357. Requesting or receiving money or any other utility, under the pretext of influencing the judge, jury, prosecutor of the court, a judicial officer, expert, translator, interpreter or witness:
Penalty – imprisonment from 1 (a) to 5 (five) years and fine.
Sole Paragraph – The penalties increase to a third, if the agent claims or implies that the money or utility is also intended to any person referred to in this article.
The criminal type treated here reveals two incriminating conduct, and, soliciting or receiving money or any other utility on the pretext of “suggest” any of the servers that are in the service of justice. In this sense, the configuration of the offense, it is required only to obtain advantage, or promise thereof, together with public servant.
Note on the wording of Article 357 mentions that the legislature requesting or receiving money or any other utility, so for “money” or do not understand currency and “utility” anything material or even subjective.
The active subject of criminal exploitation of prestige can be anyone with the taxpayer the state.
Some scholars believe that the particular deceived by the fraudulent conduct of the agent, may also appear in the passive pole of this crime, but our understanding is not. The Supreme Court has expressed understanding in this regard, see:
-“(…) Exploitation of prestige. And the particular taxpayer is not such a crime. The crime is liable to the state. So we can not think of particular interest, at least direct interest in the outcome of this prosecution. Impossible to confuse with this interest is that of any citizen of the fairness of procedures (…).”(FTS – HC-75338 RJ – Rep. Min NELSON JOBIM – Full – J. 11/03/98 – MV) Excerpt from the vote Min Marcus Aurelius) (RTJ 167/218).
The exploitation of prestige occurs with intent, intentional, ie, the agent allocates his free will and conscious of soliciting or receiving money or advantage under the guise of influencing the judge, jury, prosecutor, etc.. There is no way guilty of the offense.
The consummation of the crime shows that the conduct and Commissioner, finishing up the offense at the time the agent come to seek or receive money or utility. Illustrative purposes only worth consign us, that the crime will be consummated even if the taxpayer will reject the request of the agent. The attempt is accepted as the action came not only to accomplish the will of others by the agent.
Finally, the prosecution for the crime of exploitation of public prestige is unconditional and should the state intervene in order to maintain the order dictated by the government.
Active corruption is the act of offering, (this offer can be practiced in many different ways) advantage, any kind of benefit or satisfaction of desire, which may affect the morality of Public Administration. Is characterized only when the benefit is offered to the public official . If there is imposition of the employee to the advantage offered, there is bribery and, yes, concussion . In the case of a public official to propose the advantage, their condition is disregarded, equating to an individual. No mode fault.
Qualified form – because of the offer, the employee actually slows or omits any official act, or performs an act in breach of the duty. Note that if there is effective action, but an official act, the type will be assigned the “main body” and not as qualified
Passive corruption in the criminal law of Brazil , is one of the crimes committed by public officials against the administration in general.
Corruption can be of two types:
active when it comes to corrupting or
passive, which refers to the corrupt public official.
Some laws define both as the same criminal conduct. [1] Brazilian law chose to conceptualize two different crimes: the bribery in the art. 333 of the Criminal Code , and passive corruption in the art. 317
Crime against religious thought:
Article 208 – publicly mock someone for reasons of belief or religious function, prevent or disrupt the ceremony or practice of religious worship, public vilification act or object of worship:
Penalty – detention of one month to one year or a fine.
Sole Paragraph – If there is use of violence, the penalty is increased by one third, corresponding to the subject of violence.
Crimes against the respect of the Dead:
Article 209 – Obstructing or disturbing burial or memorial service:
Penalty – detention of one month to one year or a fine.
Sole Paragraph – If there is use of violence, the penalty is increased by one third, corresponding to the subject of violence
Article 210 – violate or desecrate grave or urn:
Penalty – imprisonment from one to three years and fine.
TITLE IX
CRIMES AGAINST PUBLIC PEACE
Incitement to crime
286 – Inciting publicly the commission of a crime:
Penalty – detention from three to six months or a fine.
1.1. Active and passive subjects
The subject can be any active person. Taxpayer is society.
1.2. Subjective element type (intent)
It is the intent. Not required subjective element specific, nor punishes culpable.
Rating doctrinal
It is a crime:
– Common (one that can be committed by any person);
– Formal (crime that does not require for its consummation, naturalistic result, the effective disruption of public peace, with the commission of crimes);
– Free-form (can be committed by any means chosen by the agent);
– Commissioner (the verbs imply actions) and, exceptionally, omission or improper commissive by default (when the agent has a legal duty to avoid the result in terms of art. 13, § 2.0, CP);
– Instant (the end does not extend in time, giving in any given time);
– A common danger (a crime that exposes an unknown number of people in danger);
– Unissubsubjetivo (one that can be committed by a single subject);
– Unissubsistente (practiced in a single act) or
– Plurissubsistente (a crime whose action consists of several acts, allowing the fractionation), as the case, it being permissible attempt, in the form plurissubsistente.
CRIMES AGAINST PUBLIC FAITH
LEGAL OBJECTIVITY: public faith, that is, the belief in the veracity and authenticity of papers, documents, signs or symbols used in social relations. Secondly, other important goods are subject to protection by criminal law.
REQUIREMENTS:
imitation of truth (Veritatis imitatio) or alteration of the truth (immutatio verify)
damage potential
deceit
SUBJECT:
Activity: anyone
Liabilities: State
CRIMINAL ACTION:
All crimes of this title are unconditioned public action.
COUNTERFEIT CURRENCY
Article 289 – Forgery, manufactures it or changing it, coins or paper money legal tender in the country or abroad:
ISSUANCE OF TITLE TO THE CARRIER WITHOUT LEGAL PERMISSION
Section 292 – issue without legal permission, note, note, card, voucher or title that contains the promise of cash payment to the carrier or that lacks the name of the person to be paid:
Penalty – detention of one to six months or a fine.
Sole Paragraph – Whoever receives or uses money as any of the documents mentioned in this article shall incur the penalty of imprisonment of fifteen days to three months or a fine.
FORGERY OF CURRENCY TO fitting equipment
Article 291 – Manufacturing, purchasing, supply, against payment or free of charge, possess or keep machinery, apparatus, instrument or any object especially for the forgery of money:
Penalty – confinement from two to six years and a fine.
THE FORGERY OF PUBLIC SECURITIES AND OTHER PAPERS
Falsification of public roles
Article 293 – Forgery, altering them or making them:
I – designed to control tax stamp, stamped paper, or paper issued for the collection of lawful taxes;
Changes in sexual crimes against the dignity
(Law No. 12015 of 7 August 2009)
Rape (art. 213) are now compulsory on carnal knowledge or
any other lewd acts
Rape by fraud (art.
215)
It covers the carnal or other act
libidinous
Vulnerable to rape (Article 217-A) – covers the carnal or other act
libidinous with less than 14 or who has
illness or mental disability and has not
have the necessary insight
– It is a heinous crime (art. 1, VI, of Law No.
8.072/90)
Induction of under 14 to
satisfaction of the lust of others (art.
218)
Novatio legislation incriminating. Punishes the agent
under 14 does satisfy the lust (desire
sexual) third.
Satisfaction by lust
presence of children or adolescents
(Article 218-A)
Novatio incriminating legislation: practical matter
of carnal knowledge or other lewd acts on
presence of less than 14 in order to
satisfy lust own or someone else
Practice of carnal intercourse or other
lewd acts with less than 18 and greater
undiscerning of 14 (art. 218, §
2, I)
Novatio incriminating legislation, replacing the previous
crime of seduction (art. 217) and Corruption
minors (art. 218)
Facilitating the prostitution or
other form of sexual exploitation of
vulnerable (Section 218-B)
It involves the submission of the under 18
prostitution or person due to illness
or disability has no discrimination
Prosecuting crimes against
sexual freedom and against vulnerable
(Article 225)
The public prosecution is conditional (rule)
including rape. The public prosecution is
unconditional if the victim is under 18 or
vulnerable person.
Pregnancy and STD (Article 234-A) are causes of increased punishment. Note: 1)
cover all the crimes of Title VI, 2) In
cases of STDs (sexually
transmitted), covers the direct intent (you know) and
possible (should know).
Secrecy of the criminal proceedings
(Article 234-B)
It is a rule in cases involving crimes
against the dignity sexual