INEXIGIBILITY OF PAYMENT OF TAX DUE AS OBJECTIVE CONDITION OF THE CRIMINAL NON-PERSECUTION AGREEMENT IN TAX CRIMES

Abstract

This article analyzes the sui generis situation of the non-prosecution agreement in tax crimes, derived from the general requirement of full reparation of the damage unless it is impossible to do so, concomitantly to the existence of a legal provision for extinction of punishment in the event of full payment of the tax due. In order to complete this task, firstly the introduction of the non-prosecution agreement in Brazilian Legal system is contextualized. Then, the analysis of the non-prosecution agreement starts, heading toward the discussion about the effects of tax payments and installments, so that, at the end, the general objective condition and the extinction of criminal liability are strained. The general objective is to illuminate this almost antinomical situation and to propose a solution that does extrapolate the role of doctrine, or demand legislative changes. The inductive approach method is used, with reference to bibliographic and documentary sources. This work is justified by the guardianship of fundamental freedoms before the bad legislative technique that culminated in this complex situation, as well as by the possibility of pointing out a constitutionally founded solution.