Art. 66. Notwithstanding the acquittal in the criminal court, the civil action may be filed when the material non-existence of the fact has not been categorically recognized.
Criminal acquittal that does not preclude civil action
Decision on authorship and existence of the fact in the criminal process: See this same subheading under the heading Minimum value, system of reparation, prescription, authorship and existence of the fact, in comments to article 63.
Acquittal based on items I and II of article 386: If the judge acquits the accused because the non-existence of the fact has been proven, civil action is barred in view of the provisions of article 935 of the Civil Code and this article 66 of the Code of Criminal Procedure . If the acquittal is due to there being no proof of the existence of the fact, that is, by application of the principle “ in dubio pro reo ”, nothing prevents seeking to provide this proof in a civil action.
Acquittal based on item III of article 386: The fact that the fact does not constitute a criminal offense does not mean that it cannot be an illegal act. Crime and illicit act have distinct constitutive elements. Certain conducts, when practiced culpably, do not constitute crimes, however, they are illicit acts. Thus, acquittal based on item III of article 386 does not constitute an obstacle to the damage repair process.
Acquittal based on items IV and V of article 386: If the acquittal sentence concludes that it is proven that the accused did not contribute to the criminal offense, the filing of a civil action is ruled out. According to article 935 of the CC, it is not possible to question more about who the author is when this question is decided in the criminal court. However, if it decides that there is no proof that the accused has contributed to the commission of the criminal offense, such proof may be sought in civil action.
Acquittal based on item VI of article 386: If the accused is acquitted due to the acknowledgment of the presence of circumstances that exclude the crime, the filing of civil proceedings is not acceptable. By the way, see the subtitle Exclusions of unlawfulness recognized in the criminal sentence of the title What makes res judicata in the civil , in comments to article 65. see subheading Exclusions from culpability under the heading What makes res judicata in civil cases in comments on Article 65).
Acquittal based on item VII of article 386: When the acquittal is verified because there is not enough evidence for the conviction, nothing prevents the triggering of the reparatory civil process. This generic acquittal does not definitively rule out authorship or materiality, nor does it ensure that the acquitted has acted protected by exclusionary grounds of unlawfulness.
Jurisprudence
Independence of instances and lack of proof: The independence of instances must be mitigated when, in cases of material non-existence or denial of authorship, the same fact is proven in the administrative sphere, but not in the criminal sphere ( AgRg in the EDcl in the HC 601.533-SP , Reporting Justice Sebastião Reis Júnior, Sixth Panel, unanimously, judged on 09/21/2021, DJe 10/01/2021.).
