A aplicabilidade da teoria da cegueira deliberada na responsabilização dos agentes financeiros pelo descumprimento das obrigações impostas pela lei de lavagem de capitais

Abstract

The legitimacy of the application of an American case law construction, called willful blindness doctrine, in the criminal responsibility of the gatekeeper, in the specific case in which he cooperates with a process of money laundering by defaulting any of the obligations imposed by the Act n. 9.613/98, is the central theme of this work. First, it discusses about the innovation and the peculiarities of the theme as a whole, that consists in a new kind of offender, the white-collar criminal, and an equally innovative crime, that recently become a type of offense in the Brazilian legal system and in the alien law, the money laundering. Then it holds forth on the qualification of the conduct that would be accomplished by the gatekeeper, an omission in the case, and how to evaluate the criminal malice in the offense committed by this individual, which is the eventual malice; soon after, it begins to approach the willful blindness doctrine and its compatibility with the Brazilian legal system. Later, it outlines the obligations imposed by Act n. 9.613/98 and what are its intrinsic qualities, and demonstrate the guardianship function of financial system given to the gatekeepers by the provisions of that law. The research result is displayed in the arguments justifying the applicability of the willful blindness doctrine on the criminal responsibility of gatekeepers for the default of the legal obligations and in the presentation of the conditions that must be fulfilled and verified by the judge to do so. Finally, it write about a brief study of the Brazilian case law which the willful blindness doctrine was applied in the conviction for the offenses set forth in Act n. 9.613/98.