CONSIDERATIONS ABOUT THE CONTENT OF THE TYPICAL ELEMENTAR “UNDUE ADVANTAGE” IN THE CRIMES OF CORRUPTION (ACTIVE AND PASSIVE) AND IN THE ILLEGAL ACTION PROVIDED FOR IN ARTICLE 5, INCISE I, OF THE BRAZILIAN ANTI- CORRUPTION LAW

Abstract

The present study intends to discuss the content of the typical elementary “undue advantage”, which integrates the wording of active and passive corruption crimes. Therefore, it is proposed to examine the doctrinal reflections on the matter, in order to extract from them notes that indicate a specific content for the undue nature of the advantage, independent of the other typical elements. Furthermore, the aim is to analyze the meaning of the same term in the administrative offense provided for in the anti-corruption law. Furthermore, the aim is to analyze, through bibliographical research, the meaning of the same term in the offense provided for in Article 5, item I, of the “Anti-Corruption Law”. It turns out that, in corruption crimes, the term “undue advantage” is accompanied by other elements, which establish the venality of the public servant as a requirement for the configuration of the offense. However, in the aforementioned offense of the “Anti-Corruption Law”, the prohibited conduct has its content almost exclusively centered on the element “undue advantage”. Therefore, it seems necessary to define the specific meaning of such expression. The research carried out will indicate the predominant perception in Brazilian doctrine regarding what defines the undue nature of the advantage – and will indicate that such concept is insufficient to delimit the offense provided for in Article 5, item I, of the “Anti-Corruption Law”. Finally, measures will be proposed to address the problem highlighted.