A (a)tipicidade da evasão de divisas por meio do bitcoin: inadequação das criptomoedas aos elementos normativos do tipo

Abstract

The present study aims to offer, from the perspective of Economic Criminal Law, essential dogmatic contours to the crime of currency evasion, included in article 22 of Law no. 7,492/86. Going through an analysis of the context of the emergence of the criminal type in question, in which the consequences of the hasty adoption of an unprecedented criminal protection for the National Financial System are elucidated in an attempt to resolve the country's economic instability, initially, the three criminal types of the aforementioned offense are broken down, and the linguistic and semantic limits of the norm and the normative elements that compose it are presented. Subsequently, the old and new instruments that are presented for the consummation of the crime of currency evasion are highlighted, bringing a focus to the examination of the modern, dynamic, virtual, intangible and decentralized nature of cryptocurrencies, testing, based on current regulatory scenario, hypotheses regarding the possibility – or not – of adapting bitcoin to the typical elementary “currency”, “currency” and “deposit”. In the end, it is concluded, going through the notions about the principle of legality, that, if practiced through cryptocurrencies, the conducts foreseen in the caput and in the sole paragraph of article 22 of Law no. 7.492/86 are objectively atypical, being In the current scenario, the typical framework for its movement, even if unauthorized, or custody, even without communication to the competent federal department, is unfeasible.