Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 144º CPP – Mortgage and seizure and the civil responsible.

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Art. 144. The interested parties or, in the cases provided for in article 142, the Public Prosecutor’s Office, may request the measures provided for in articles 134, 136 and 137 in the civil court against the civil responsible.

Mortgage and foreclosure and civil liability

Legitimacy:  It belongs to the offended party, their legal representative or heirs and the assistant to the prosecution.

Purpose:  Legitimacy is to apply for a legal mortgage ( Article 134 ), preliminary attachment of property ( Article 136 ) and attachment of furniture ( Article 137 ).

MP’s illegitimacy:  In our comments to  article 142, we reject the thesis that it is not possible for the MP to request an arrest or mortgage when there is interest from the Public Treasury. We maintain that, when the Public Prosecutor acts within the limits of the criminal process pursuing the mortgage guarantee (not in the civil execution, outside the criminal process), with amounts equivalent to the proceeds of the crime, and which were diverted, his activity is included in the scope of the criminal prosecution. In the criminal proceedings, the Public Prosecutor’s Office seeks a mortgage and the seizure of assets belonging to the accused/defendant. Here, in the present device, are assets of third parties, of the civil responsible. There is no legitimacy of the MP. While the goods affected by the restriction are the property of the accused, if there is interest from the Public Treasury or from the offended poor, the role of the Public Prosecutor’s Office is within the scope of criminal prosecution. If the goods belong to third parties, it ceases to be persecution, and becomes representation, which is constitutionally prohibited. For the same reasons, the MP is an illegitimate party to request a mortgage or attachment against the civil responsible in favor of the offended poor. The foundations of these positions are more detailed in our comments to the article 142 .

Those responsible for civil reparation:  The following are responsible for civil reparation: I – parents, for minor children who are under their authority and in their company; II – the tutor and the curator, for the pupils and curatees, who find themselves in the same conditions; III – the employer or principal, by its employees, servants and agents, in the exercise of the work that competes with them, or because of it; IV – the owners of hotels, inns, houses or establishments where people stay for money, even for education purposes, for their guests, residents and students; V – those who for free have participated in the proceeds of crime, up to the concurrent amount ( article 932 of the Civil Code ). 

Illegitimacy of the civil responsible:  The condemning criminal sentence does not reach the civil responsible ( article 932 of the Civil Code ). They are the subjective limits of res judicata, which only produce effects between the parties to the process. The civil responsible is an illegitimate party to appear as a party in the civil process of compliance with the condemnatory criminal sentence. The right against him must be sought in a knowledge action, that is, through the action referred to in  article 64 of the CPP .

Doctrine

Dias Toffoli:  The AGU in defense of the State and the citizen . Conjure

Guilherme Nucci:  The STF was late, but it did not fail: a criminal fine must be enforced by the Public Ministry . William Nucci

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