Análise dos princípios constitucionais na aplicação administrativa da pena de perdimento nas operações de comércio exterior

Abstract

The penalty of confiscation or forfeiture of goods by the customs authorities is a measure provided for under international agreements, besides being explicit in the law of several countries, but wonders whether such a penalty meets the constitutional principles of legality, reasonableness and proportionality. The research aims to study the goods forfeiture due to underpricing committed in import, analyze the goods forfeiture in the context of international law, consider Brazil's position in the international economic context and evaluate the Brazilian legislation on the penalty of forfeiture. The agreements negotiated within the World Customs Organization are clear in predicting that the signatory countries can use punitive measures in order to protect its domestic economy. Countries like UK, US and Chile have in their customs law provision applying the forfeiture of goods. Brazil has a prominent position in the international arena, occupying the seventh position among the largest economies in the world, making it necessary to adopt repressive measures to combat illegal activities on its borders. Brazilian law also provides for penalties when irregularities in the import are practiced. The under-invoicing and under valuation of goods are customs offenses punished with distinct feathers, that with the forfeiture, this with the fine. The penalty of forfeiture in cases of under-invoicing is considered disproportional by the doctrine, but the jurisprudence considers the confiscation of goods, in cases of under-invoicing, proportional when there is document forgery fraud. It was evident that the penalty of confiscation of goods respects the principles of legality, proportionality and reasonableness, when applied in cases of fraud of documents accompanying the customs clearance procedures.