Interposição fraudulenta no comércio exterior

• Ano de defesa: 2025
• Autor(a) principal: Schadrack, Gabrielle Brüggemann
• Orientador(a): Araujo, Clarice Von Oertzen de
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Pós-Graduação em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: Dano ao erário; Interposição fraudulenta; Fraude; Simulação; Comércio exterior
• Palavras-chave em Inglês: Damage to the public treasury; Fraudulent interposition; Fraud; Simulation; Foreign trade
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://repositorio.pucsp.br/jspui/handle/handle/44201

The objective of this study is to define the elements that compose the primary sanctioning legal rule that sanctions damage to the public treasury due to concealment of the passive subject, the real seller, buyer or person responsible for the import or export operation of goods, through fraud or simulation, including the fraudulent interposition of third parties, as provided for in item V of art. 23 of DL n. 1,455/1976. The relevance of this definition lies in the legal uncertainties generated by the open typology of the infraction, written with vague and imprecise terms, which results in normative elasticity that encompasses a wide range of behaviors and creates a gray zone where neither the effective characterization of the infraction nor the party responsible for bearing the sanction is clear. Based on the hermeneutic-analytical method and the theoretical framework of Logical-Semantic Constructivism, the sanctioning rule was decomposed and isolated each of the elements provided by the legal text for individual analysis until its meaning and scope were reached. These elements were then interpreted in conjunction with other legal norms with which they interact, and the object was then reconstructed under the structure of the incidence matrix-rule. Ultimately, it was concluded that the relationship of implication between the hypothesis (infraction) and consequence (sanction) of the legal rule, in its strict sense, establishes that given fact of remaining hidden in the operation of import or export of goods through fraudulent interposition (material criterion), in the act of registering the import or export declaration (temporal criterion) in a customs office (spatial criterion), the penalty must be fulfilled by the real hidden principal of the operation (personal criterion: passive subject) in favor of the Federal Government (personal criterion: active subject), of forfeiture of the imported or exported goods, replaced by a fine equivalent to the customs value, in the case of importation, or to the price stated in the respective invoice or equivalent document, in the case of exportation, if the goods are not located or have been consumed or resold (quantitative criterion), there being no rule of joint liability concerning this sanction