Economic offenses as penological category. Making explicit the unifying criterion underlying the Economic Offenses Act

Abstract

The article’s main goal is to defend an understanding of the legal concept of economic offense as a penological category. The methodology employed for this purpose consists in the deployment of an analytical strategy of making explicit the basic criterion underlying the (disjunctive) categorization of a crime as an economic offense, based on a doctrinally informed exegesis of the provisions of the Act 21.595 from which that criterion can be extracted. Upon this basis, the thesis according to which that same categorization would be indicative of a differentiated felonious quality of the given crime (as compared to the corresponding «non-economic» offense) is subjected to criticism. The main result thus obtained is the demonstration that the recognition of a purely penological function to the legal concept of economic offense is compatible with the consideration that, procedurally, the economic nature of the deed attributed to one or more defendants is to be assessed from the formalization of the investigation by the public prosecutor onwards, which rules out the possibility of this being postponed until the sentencing hearing following the eventual convictive verdict.