A criminalização do não pagamento do ICMS

Abstract

This thesis analyzes the decision of the brazilian federal supreme court, "Supremo Tribunal Federal (STF)", in the Habeas Corpus Ordinary Appeal "RHC" no. 163.334/SC, in which the criminalization of non-payment of the tax on the circulation of goods and services, "Imposto sobre Circulação de Mercadorias e Serviços (ICMS)", was established. The theoretical framework used is post-positivist neoconstitutionalism, and the methodologies applied were bibliography and dialectical criticism. The results obtained are in the sense of verifying that the aforementioned decision criminalizes an atypical conduct, in addition to being incomplete in terms of the relation to the intent of the crime and the debtor's persistence. It was found that STF held criminally responsible an act of mere default by the taxpayer, disrespecting the principles of Legality, Subsidiarity, Presumption of Innocence, and constitutional prohibition of the Civil Debt Imprisonment. It was also found to be essential to reform the STF's decision, at risk of infringing individual fundamental rights.