Cegueira deliberada e dispensa ilegal de licitação

Abstract

Willful blindness is a doctrine of foreign origin that leads to criminal accountability of the subject who is faced with a situation with a high probability of be a crime and, instead of taking the necessary measures to improve his knowledge, chooses to remain in ignorance about completeness of fact (which could lead him to confirm the criminal nature of his activity). This theory in Brazil is generally used in crimes involving money laundering, in addition, many decisions that refer to the theory doesn’t use it in a satisfactory way. Therefore, this work aims to contribute to the expansion of the use of this theory in other crimes, as well as to increase the knowledge available about the doctrine, making possible an improvement in judicial grounds and academic’s works that deal with the theory. It will be detailed to the origins and development of the institute, as well as doctrinal and jurisprudential divergences on the subject in the United States, where willful blindness has a more widespread application. After this will be studied the doctrinal and jurisprudential treatment of the doctrine in Brazil, as well as the relationship between willful blindness mens rea in the knowing form, finally concluding on how to apply the theory in national territory, rebutting the criticisms against it. After that, the focus will be the crimes involving public binding in general and the crime of illegal waiver of the bidding, with the proper doctrinal approach. Bidding crimes are of great importance for the protection of constitutionally established values, however, its application is subpar. In addition, the jurisprudence has committed repeated misconceptions in its treatment. The jurisprudential positioning will be analyzed and criticized, creating the necessary substratum for the defense of mens rea in the knowing form, in the mode of willful blindness, in the scope of the crime of illegal waiver of the bidding.