The topic is still very incipient in the Brazilian Judiciary, which demonstrates the relevance of this first ruling by the Regional Federal Court of the 1st Region.
In a judgment marked by a significant debate on the matter, the 2nd Chamber of the TRF-1, by majority, recognized the extinction of criminal liability (due to the death of the agent) because of the dissolution of the accused legal entity. This concerns the application of Article 107, I, of the Penal Code. Thus, it was decided in the context of a writ of mandamus filed by the incorporating company, confirming the understanding that this is a viable means of seeking the dismissal of a criminal action against a legal entity, similar to how habeas corpus is for natural persons.
The debate originally involved an indictment against the incorporated company for an alleged environmental crime under Articles 54, §2, V, and 56, caput, both of Law No. 9.605/98.
In this case, since the incorporated company had its legal personality regularly dissolved, it consequently lost its capacity to be the defendant in a criminal action for an alleged environmental crime that occurred before the incorporation, which was recognized by the majority of the panel. Furthermore, the indictment was filed by the Federal Public Ministry against the incorporated company, which had been duly dissolved three years earlier.
It is worth noting that, in the civil sphere, equating the legal effects of the dissolution of a company’s legal personality to the death of a natural person is not new, as evidenced by the following ruling from the STJ:
Civil Procedure. Incorporation. Procedural Succession. Interlocutory Appeal Filed by Third Party (Incorporator). Dissolved Incorporated Company. Demonstration After the Filing. Interpretation of STJ Precedent No. 115, Applied by Analogy. According to Law No. 6.404, of 12/15/1976 (Corporate Law), incorporation—an operation in which one or more companies are absorbed by another—results in the dissolution of the incorporated company’s legal personality, equating it, for legal purposes, to the death of a natural person. (…) 4. Interlocutory Appeal Denied. (STJ — 2nd Chamber — AgRg in REsp 89.557/RS — rapporteur Minister Mauro Campbell Marques — DJe 10/27/2010)
However, the question that arises is: What are the effects of the “death of a legal entity” in the criminal sphere? On this topic, Bertolino’s position is noteworthy:
“(…) according to the principle of personality (or intranscendence), criminal punishment will never exceed the limit of the agent’s person (Article 5, XLV, CF/88), and the transfer of penalties and criminal liability is expressly prohibited.
(…) In criminal law, the principle of strict legality must be observed, which prevents the use of legal analogy to create incriminating criminal types and/or to the detriment of the defendant/accused.”
According to the aforementioned author, considering that Law No. 9.605/98 — the legal framework for crimes and offenses against the environment — does not address the extinction of agents’ criminal liability in the event of death, the subsidiary application of the norms provided in the Penal Code and the Code of Criminal Procedure (Article 79) is attracted, allowing for the analogous application of Article 107, I, of the Penal Code.
There is no corporate succession in the criminal sphere.
Unlike the civil sphere — where the transfer of propter rem liability, related to the thing itself, is permitted — criminal punishment is limited to the agent’s person and no one else. Therefore, corporate succession in the criminal sphere is not applicable, unless there is evidence of fraud in the company’s dissolution.
This thesis has already been analyzed by the Superior Court of Justice (STJ) when it judged, in its 3rd Chamber, REsp No. 1.977.172/PR, in a ruling summarized as follows:
Criminal Law and Criminal Procedure. Special Appeal. Pollution Crime (Article 54, §2, V, of Law 9.605/1998). Conduct Committed by a Business Entity Later Incorporated by Another. Dissolution of the Incorporated Entity. Article 1.118 of the Civil Code. Attempt to Impose Criminal Liability on the Incorporating Entity. Inadmissibility. Principle of Intranscendence of Punishment. Analogous Application of Article 107, I, of the Penal Code. Extinction of Criminal Liability Maintained. Special Appeal Denied.
The conduct described in the indictment was allegedly committed by the business entity AGRÍCOLA JANDELLE S.A., which was later incorporated by SEARA ALIMENTOS LTDA.
Incorporation results in the dissolution of the incorporated entity, transferring to the incorporating entity the rights and obligations that belonged to the former. Interpretation of Articles 1.116 and 1.118 of the Civil Code, as well as Article 227 of Law 6.404/1976.
The state’s punitive claim does not fit within the legal-dogmatic concept of a transferable patrimonial obligation, nor is it confused with the right to civil reparation for damages caused to the environment. Therefore, there is no rule that authorizes the transfer of criminal liability to the incorporating entity. (…)
Once the legal entity has been legally dissolved—without any indication of fraud, as expressly stated in the appealed decision—Article 107, I, of the Penal Code applies analogically, with the consequent extinction of its criminal liability.
This judgment addressed a situation where the criminal action was terminated shortly after the indictment was received, long before the sentencing. If there is fraud in the incorporation (or even without fraud, if the incorporation was carried out to escape the execution of a sentence imposed by a final judgment), there will be a clear distinction from the precedent established here, with the application of a different legal consequence. It is possible to consider, in such cases, the disregard or ineffectiveness of the incorporation vis-à-vis the Public Power, in order to ensure the execution of the sentence.
Conversely, civil liability for damages caused to the environment or third parties, as well as the extrapenal effects of a conviction that may have already been handed down when the incorporation occurred, are transferable to the incorporating entity.
Special appeal denied.**
(REsp No. 1.977.172/PR, rapporteur Minister Ribeiro Dantas, Third Chamber, judged on 8/24/2022, DJe of 9/20/2022.)
Therefore, it is understood that when the dissolution of a legal entity is duly regulated—without any allegation that the incorporation was carried out fraudulently or with the intent to escape the execution of a sentence imposed by a final judgment—there is no other option but to recognize the extinction of the criminal liability of the “deceased” agent.
As previously mentioned, given the incipiency of the topic in the Brazilian Judiciary, this first ruling by the TRF-1 is particularly relevant.
The judgment is dated July 1 of this year.
