A. INTRODUCTION
24.101 The general principles of criminal law contained in the Brazilian Criminal Law System, to which White Collar Crimes are directly related, are outlined below.
1. The Legality and Antecedence Principles
24.102 Under the Brazilian rules of law, there is no crime unless first defined by law, nor penalty without prior legal imposition. This constitutional rule embodies two basic principles underlying criminal law:
(i) the legality principle: criminal conduct must have been expressly defined as such under the law, identifying such offense as punishable and determining the respective penalty; and
(ii) the antecedence principle: the identification and imposition of a penalty must precede the commission of the offense.
2. Characterization, Unlawfulness, Culpability
24.103 Three other penal principles are also worth mentioning, as they derive from the legality and antecedence precepts: (i) the characterization principle (encompassing the legality and antecedence principles); (ii) the unlawfulness principle (a criminal practice is necessarily contrary to the law); and (iii) the culpability principle (a person’s commission or omission is a material element of the offense).
24.104 Four elements must be present to define any act as a criminal offense and to prescribe the corresponding punishment: (i) the conduct; (ii) the result; (iii) causation; and (iv) legal definition of the crime.
24.105 Conduct means a person’s act or omission with a view to producing a fact defined as punishable under the criminal rules; the result is the effect of such commission or omission; the causation is the causal nexus between the conduct and the result; and legal definition of a crime is the sum of the above factors to characterize and classify a concrete fact and the criminal definitions prescribed by law. If any of the above elements is missing in regard to the criminal rule, the conduct will not conform to any legal classification; hence, no crime can be said to have occurred.
