A tutela penal do patrimônio contra agressões internas

Abstract

The article analyzes criminal protection of assets against internal attacks, focusing on the crimes of breach of trust and embezzlement. Based on a paradigmatic case recently judged by the Portuguese Supreme Court of Justice, in which former managers of Banco Privado Português (BPP) were convicted of breach of trust after appropriating the Bank's resources, the typical adequacy of the conduct and the possibility of its classification as embezzlement are discussed. Thus, theories about the concept of assets are examined. Next, models of criminal protection of assets against internal attacks are analyzed. Finally, the central elements of the crimes of breach of trust and embezzlement are contrasted: while breach of trust focuses on the appropriation of another person's movable property, requiring intent to enrich oneself, embezzlement protects the administration of assets that is harmful to the interests of others in their entirety, regardless of this specific purpose, in the case of Article 224 of the Portuguese Penal Code. It can be concluded that these crimes complement each other in the assets criminal protection, and it is more appropriate to subsume cases such as that of BPP to the offense of embezzlement.