Criminal aspects of trust

Abstract

In Brazil, legislators commonly insert criminal infractions in no criminal acts (mainly in commercial, civil or financial acts). This practice is not recommendable, because legal treatment becomes chaotic; in fact, this is a hindrance to judges and interpreters when analysing a factual case. The fiduciary transfer of ownership, a typical Brazilian institute, shows this kind of trouble. Although established by a financial act (4.728/65), its legal discipline comprehends a crime, described in that act as a debtor's fraudulent transferring or burdening of goods after having already transferred them to the fiducial creditor. Being the description of this crime not systematic, some doubts are unavoiable: what is exactly the actus reus? And what about the mens rea — is it possible for one to commit this crime unintentionally? Could the interpreter admit, in this case, mistake of criminal law, or is there another hypothesis if the debtor does not know the effects of fiduciary transfer? And what is the relationship between this crime and embezzlement, defined as the fraudulent conversion of the property of another by one who has lawful possession of the property? We aim at answering all these questions in this project. Discussing the crime mentioned above is really important nowadays: financings and loans in industrial areas tend to increase, probably as a result of Brazilian economical policy. The more loans, the more fiduciary transfers to guarantee credits; consequently, there will be more criminal cases corcerning this matter arriving to national courts.