| Candy Cigarettes |
 You're a total badass, but you do do not taste very good. |
| You Are Scary |
 You even scare scary people Sometimes! |
| Your Monster Profile |
 Basilisk Warrior You Feast On: Coffee You Lurk Around In: Sewers You Especially Like to Torment: Crybabies |
The Constitution is a normative document, centered in the fundamental rights, which is structured organic values, aiming to discipline society and state. Your summary is great value for human dignity.
A. Traditional : mainly of French and Italian (in the nineteenth century). Was adopted in Brazil until the CF-88. Constitutional Law has characteristic deductive (general to specific). The method examines and ranks institutions.
B. American : inductive reasoning. The dynamic part of a U.S. constitutional case, or a Supreme Court decision, there are several standards : federalism, separation of powers, freedom of worship, etc.. They are all framed by the Constitution, its amendments and the constitutional precedents. Today, Brazil is essentially jurisprudential, despite the formal traditionalism; our institutional instability, however, does not allow our improvement.
C. German: the same method inductive time (out of concrete to explain the Constitution Constitutional Law, which can also be studied as science) and deductive. From the '20s, it creates the Constitutional Theory, which is a study of a specific constitution, establishing its role and giving meaning to the Basic Law. We can not forget that even in Germany, the law tramples increasingly methodology. In Brazil, this study is not possible, because we do not have constitutional tradition, in addition, our Constitution is not unique. The
Brazil left the traditional model because of the strength of the CF-88. There have been attempts doctrinal German adoption of the methodology. However, the law tramples disciplinary issues. Also walked into a model monograph (special study institutes) can be said then that we produced a fourth model. This is based on the jurisprudence of the STF, the deductive character, having support in monographs (doctrinal and fragmented).
A. Families constitutional: for the understanding of constitutional law, not just the question of methodology.
1. English: constitutional stability (Bryce)
a. basis of constitutionalism (limiting power and guarantee of rights): Magna Carta (1815); Bill of Rights
b. concept of constitutional stability. In the late nineteenth century, the British constitutional studied the issue of constitutional permanence (although England did not have a written constitution). Bryce called constitutions regarding their stay. There is also a great contribution to English constitutional law as to which institution should retain the constitutional order (in this case, Parliament).
c. You can not understand the American Constitutional Theory without the English law. This goes through a major transformation, in 1998, Britain adopted an advanced Charter of human rights, in addition, Britain is experiencing the unprecedented experience of state reform (changing Constitution). (See Constitutional Reform )
2. French: Constituent Power
a. After a relative loss of importance in the late twentieth century (not to work with practical aspects), the idea of constituent power was resumed at the beginning of the century, through the revolutionary notion of constitutional block. This is present in art. 5. § 2. the French Constitution, and throughout the art. 1., 7 of the European Constitution.
b. The composition of the block of constitutionality is derived from the junction of the preamble of the French Constitution with the Declaration of Human Rights and the fundamental rights guaranteed by the 1946 Constitution. In
Brazil, unlike France, fundamental rights are not only expressed at a level supraconstitucional (principles and treaties).
3. Italian: harmonization between economic order and work
4. German: matrix, based on four important points: a.
importance of the principles and values
b. Importance of fundamental rights
c. Constitutional Jurisdiction
d. Effective Date of Constitution
=> V (P) + DF + JC + EC =
Constitution => European Constitutional Theory (due to European Community law and, today, the European Constitution itself.
a. Base:
i. Cultural Identity
ii. Constituent Power
iii. Citizenship
iv. Legal personality
v. New fundamental rights (eg bioethics , efficient public administration)
=> IC + PC + C + PJ + DF = CE
b. However, there are discordant voices in Europe entirely, believing that the constitutional traditions of each country in the bloc already suffice.
5. American Constitutional Theory: basis of all modern constitutionalism (civil rights, with legal guarantor of the Constitution, the role of federalism and presidentialism).
A. Ancient Greece: from the Greek world, had some notion of the Constitution. The category politeia is not accepted, however, as a Constitution, only the political organization of the city-state. The policy would, at most, a material Constitution (principles, norms that guide society).
B. Medieval World: Some scholars argue that the Magna Carta of 1215 was the first Constitution, others that it is only a document of law. She anticipates some major institutions (eg the legality tax) but not has the feature of generality that characterizes the modern Constitution.
C. 1787 The Constitution of 1787 is the world's first constitution, because it speaks to a collective ( we, the people ). Another key feature is its superiority to the law.
A. Liberal (XVIII century - 1919)
1. Constitution as a limitation of state power, according to the principle of nonintervention (State gendarme). Separation of powers, due process.
2. Rights individual (property was the core of these).
3. Vision Classic of subjective rights (right to defense, civil liberties, etc.).. There is no systematic, they are not the core of the Constitution.
4. There insurance mechanisms of effectiveness. Constitution is more a "letter of intent (" constitutional romanticism "- fiction, non-concrete), merely declaratory.
5. Address: rhetorical.
Brazil had two liberal constitutions: the 1824 granted (who considered slaves as res) and CF 1881.
B. Social (1919 - 30 years)
1. State: intervention in the economic order to promote social rights.
2. Katalog fundamental rights. Protection of human dignity.
3. Social function of property.
4. is common in Latin America to mention the Mexican Constitution of 1917 as the first social. However, it is not true reception of the doctrine. In fact, the first was the Weimar Constitution (1919); however, her lack of a mechanism for effecting (Constitutional Court). This does not occur in the Austrian Constitution of 1920, elaborated by Kelsen.
5. Address: rhetorical.
Brazil CF 1934 and 1946 follow this model.
C. Social jurisprudence (1945 - late twentieth century)
1. State: social intervention. (State of Welfare: the growing process of intervention.)
2. No more constitutionalism itself, but neoconstitutionalism; Constitutional Theory is dominant.
3. Anthropocentric Constitutions: s principle fundamental rights have character and value. These rights are enhanced through the new installment rights. There is considerable debate about the social rights are fundamental or not, according to conservatives, not because it depended on the budget, according to other scholars, all fundamental rights have to be hired.
4. Principles and rules are constitutional, but principles have an interpretive character, in order to leverage other standards.
5. Breakthrough: effectiveness. It is unremovable the idea of fundamental jurisdiction jurisprudence, because the Constitution shall be implemented in judicial decisions. Thus, the power of judges is enormous; strengthening of the Constitution, its text is weakened by the force of decisions.
6. Address: translating.
D. Postgraduate Social jurisprudence, there are two possibilities:
1. Jurisprudential-international : building on the European Union (which serves as a network, a hierarchy of standards with different instances), there is a coexistence of the traditional state with a new entity without legal set. The state's role would be to encourage political, and not the intervention. There are new fundamental rights (social, ethics, diversity). The effectiveness still depends much of the judiciary, international jurisdiction. Address: each part of the system lies a possible speed.
2. security model: from 11 / 9, this model has been widely discussed by American doctrine. His concern is the maintenance of constitutional guarantees in a risk society. The state is interventionist, but the degree of intervention is discussed. The restriction of fundamental rights (eg the Patriot Act ). There is a contradiction regarding the effectiveness of the guidelines, because the Supreme Court continues to demand due process.
A. The permanence: rigid, semi-flexible, flexible.
1. In the late nineteenth century, Bryce performs a classification as to the permanence of the Constitution. This can be hard (restricted have procedures for changing your text, such as the CF-88), semi-rigid (no change to the rigidity of certain parts, the other not - for example, the Charter of 1824) or flexible (such as the Charter albertina Italy).
2. In rigid constitutions, as well as formal mechanisms, we can emphasize the strengthening of so-called "entrenchment clauses", particularly after 1945 (art. 60 § 4. The Constitution).
3. This classification does not hold much nowadays due to the large change in the very concept of the Constitution, which has great importance to jurisprudence. It maintains the doctrine that the Basic Law should not be "rigid" because it has to be opened in the historical process (in the terminology of Hesse, the Constitution should be "open society").
4. The constitutional theory traditionally created two tools to adapt the Constitution:
a. Constituent Power:
i. Power original constituents (Sieyès): The nation elects representatives participating in the ANC and this makes the Constitution, which establishes the constitutional bodies and the legal structure. In particular, rigid constitutions are very much linked to the constituent power originating, as it points to the future permanence of his will; it to succeeding generations the legacy of this meeting (responsibility principle).
The original constituent power has two features: create a legal system and has full sovereignty (in fact it is in fact limited by both the international order and the rights that are being created). Therefore, it is this power that determines who is the guardian of constitutionality. (Art. 102/CF)
ii. derived constituent power: power granted by the original constitutional power to conduct the formal change of the Constitution. It has features several of the above (in relation to the dictates of the original power, its role is secondary and conditional, conditions which may refer to matter, time and circumstances of the possible constitutional mutation) and can take two forms: The
. review - more flexible procedure, changing the whole constitution. The Portuguese Basic Law, article 288, does the forecast change at any time through amendments, but with the imposition of a reform every seven years.
B. amendment - the Brazilian tradition is of constitutional amendments. However, until 1946, there was an accurate description of the term - since then the institute is called "the power of amendment." Art. 2. ADCT of speech review, stating that one should be made after the plebiscite of 1993.
iii. There is also due to the constitutional power, which occurs in the federal system, as foreseen in art. 25 of CF/88. The Federation states have constitutional power to organize, since they do not infringe their constitutional determinations, including those determining competence (art. 21 and 22 of the Constitution).
b. Constitutional Jurisdiction: A set of institutions and mechanisms through a specialist tribunal which aims to preserve the constitution and implement it through the realization of rights.
i. Two types of moment of constitutional jurisdiction:
A. North America: Judicial review - diffuse
1. There may be questioning about the constitutionality of the application of a rule in any instance of the judiciary.
B. Austria: European model - focused
1. Only in the constitutional courts can be said the questioning. In the post-1945 period, the tendency in some societies was the combination of the two models (such as Portugal, which has a constitutional court, but allows the debate in any instance).
Brazil Especially after CF/88, established itself a hybrid system, we do not have a constitutional court, but it is the STF in the central part concentrate system. In general, we adopt the model judicial review, any judge can rule by means of its own.
ii. The body of constitutional jurisdiction (simplified classification):
A. Judicial - judicial review and the European model
B. Political - England: it's a really political power to exercise constitutional jurisdiction (House of Lords).
Europe There is great doctrinal debate about the nature of European constitutional court, some say there is a political, as the constitutional court somehow not part of the judiciary, its composition would be politics. However, the processes and judgments of the European constitutional justice are guided by the principle of due process, the judge must be neutral ( self-restraint), according to objective criteria. The composition is as political as the U.S., therefore the system should be classified as judicial in nature.
iii. History constitutional jurisdiction
A. Source: England. Constitutional jurisdiction was then exerted by the House of Commons.
B. In the U.S. progress was made in favor of more contemporary view of constitutional jurisdiction ( "supreme law of the land" - art. VI of the U.S. Constitution ). However, the guardian of constitutionality established only after Marbury v.. (1803): The Supreme Court .
C. Regarding the European system, is with the Austrian Constitution of 1920, due to the influence of Kelsen, who develops a constitutional jurisdiction concentrated. Until then, Europe has always had a tradition linked to the constitutional legislative power. After 1945, there is definitely establishes the Austrian model, in fact, its content, this is already hybrid, as it embodies the American experience to realize rights.
=> Today, the American and Austrian, whether it is diffuse, concentrated, etc.. Are liable purposive, seeking to prevail under the Constitution and implement the right more.
iv. History in Brazil
A. The Charter of 1824 classically devoted to the Senate and the Legislature a possible role of constitutional jurisdiction.
B. Constitution of 1891 adopted the American system of judicial review and diffuse nature. This model was characterized by a process of provocation, the constitutional debate would be provoked. The Brazilian system has a root problem, which runs through the twentieth century: the country has no tradition of precedent, which leads to a weakening of the Supreme Court to enforce a decision.
C. The CF 1934 has two fixes: the current art. 52, X (it is for the Senate to exclude the unconstitutional rule) and to some extent, the centralized model (now art. 24) - the so-called "way off".
D. The CF 1946 is modeled on the 1934; remains diffuse control and interventional aspects. There is still a constitutional jurisdiction concentrated. The EC-16/65 introduces the aspect focused on the Brazilian legal system. The active legitimacy as we have today came only with the CF-88.
=> Way for discussion of unconstitutionality:
1. Exception: diffuse - ER - EC 45/04 - art. 52, X - At any time, the judge may rule on the constitutionality of a norm. The action can get to the Supreme Court through an extraordinary appeal. The 45/04 JV limits this by submitting it to a criterion of relevance.
2. Interventional Via: art. 34, VII - through federal intervention, the Supreme Court adopted the intervention that outweigh the constitutional principles.
3. Via Action: harshly criticized because there was a trivialization of its use.
a. direct action of unconstitutionality - art. 103 - Consecrated by the CF-88, mainly in art. 103, which is of standing (who may bring the action).
b. action of unconstitutionality by omission - receipt of the Portuguese law, the Supreme Court does not give practical effect.
c. Action for a declaration of constitutionality - art. 103, EC 45/04 - introduces the idea of binding effect erga omnes . The 45/04 JV favors the binding effect of this and ADIs. Both have the same effect. Question is: what is the difference between them?
=> These three routes of action are regulated by Law 9.868/99 and the EC 45.
d. ADPF - Law 9882/94 - Plea of principle (which in German is called "claim of citizenship" and in Spain, "amparo") the citizen's fundamental right to have an injured person goes straight to constitutional court. This action has two problems: the Supreme has not defined what are these fundamental principles, and is a character action alternative, no other means.
4. Via DF - term order: regulating the objective case. The STF emptied it, has no practical effect. The exception
the action of unconstitutionality by omission: it is in the process of action, the attorney general of the Union to defend the law as unconstitutional. It is mandatory that the MP has ruled on the constitutionality. You can not technically speaking, however, discussion or argument, as this analysis is straightforward.
1. The best example of historical or customary constitution is England, although it will walk into a statutory law.
2. There is a systematic approach. Hesse says that the Constitution is not a code because it has a systematic rationality, and the Constitution seeks to address all matters of importance to society. It is therefore natural that it be marked by conflict. Then comes the great importance of post-1945 interpretive principles. The Constitution does not have a drive, but the principles that allow you undergo a questioning of dogmatic.
1. Fragmenta and disciplined study of the state, to avoid having to deal with its overwhelming totality. As a consequence we have the idea dustim State abstract, fragmented, without its entirety. (Ie constitutional perspectives, social control, commercial, etc.).
2. In legal rhetoric, there are a number of categories that keep think about what is the state. (Ie instead of talking in 'state', a term of complicated concept, we speak of 'public', as if the change became the term structure of interest in something above, with an image of neutrality.)
- Nineteenth Century: Positivism Legal. General Laws abstraction + + + ahistorical neutrality AValor + + = explains the essentiality of the legal norm and legal state.
- End of the Twentieth Century: rhetoric (arguments) + principles (values) = standard legal
There is no truth or certainty. No longer an absolute view of the law.
A) Paul Laband - one of the founders of TGE, embodies the main features of TGE (justifies the State asserts that because of the very strength of the state, he is justified independently of any theory. Its strength that gives you personality.
B) Georg Jellinek - German contributed to the TGE and what would be the German Constitutional Law. Jellinek lives a historical context Laband different from the German State is already established and helped build the industrial capitalism of the late nineteenth century.
The state acted as an element of coordination in a fragmented society, containing the social pressures. Primrias was one of the attempts of state welfare: it is called the Bismarckian state. The vision of the state only legal and AValor could no longer explain the German state, with great functions and interventionist policies (and economically). Jellinek is the author of the crisis of German legal positivism and the transition of thought. This transition is not complete.
Proposals of Jellinek:
a. recognizes that, beyond the legal concept of state, this is a sociological concept. However, the lawyer only interested in the legal concept.
b. Paradoxically, Jellinek introduces an evaluative aspect in the concept of state: a category of purpose.
First, he renews the legal positivism, on the other hand, speeds up your order, because it shows how far this line of thought is the reality.
is in constitutional law that leaves his definitive mark Jellinek for the future. Their contributions:
a. Germany, this period, of the Constitution of 1871, but had no constitutional tradition. Due to their low effectiveness, Jellinek brings the issue of constitutional change. Both the German theory as the theory studied the recent American theory of constitutional change (the power of amendment or revision). What is typically debate Jellinek of German origin: see that, in short, every constitution must be changed. The German theory provides the constitutional mutation itself - a "mutation informal" (the standard remains the same, but their interpretation changes with the social forces) - and this is not confused with the power to review (Formal change). There, in Brazil, the distinction between the two mutations.
b. The twentieth century is a century full of discussions about fundamental rights. Jellinek contributes to this debate in Germany through a historical analysis. He fights hard the idea that fundamental rights are of French origin, and France had been consecrated as the 'land of Human Rights', since there had been made DDHC.
Jellinek opposes this view, arguing that the origin of fundamental rights is German, as they have arisen because of the Protestant Reformation. There is an evolution path human rights, and the Lutheran movement its starting point (freedom of expression, freedom to individual interpretation of the Bible). These rights could only be born because there was a 'freedom' a right 'liberation' of man. To Jellinek, fundamental rights constitute what he calls a theory of 'status'.
c. Theory 'status' - the whole nineteenth century was very logical and rational in the direction of the natural rights that are subjective in nature. For him, that nature is complex, not only merely subjective, but basically the objective (not dependent on the will of the state, not people).
I. In the fifth century BC, for example, had a direct democracy Athenian Agora and centered vaseada bi Institute of participation.
II. later seventeenth century until the 70s, we have representative democracy, the mechanism is indirect. Your institution is fundamental to the Parliament, in which the voice of the represented is heard.
III. From 70 years, guiding the direction democratic social movements, electronic media are also important determinants and innovations, and Parlmento remains one of the centers of political discussion. There is so much participation as representation in political systems.
IV. After 11/09/2001, live in a risk society. Limitations on exercise political participation. The Executive takes the place of Parliament as a centralized power structure.
The idea of non-intervention of the state was established by liberalism. It is clear that the German constitution of 1818 was already pointing to the new times; The new concept has several meanings:
1. Gendarme State (State does not intervene unless there is conflict).
2. State Police (state and duty to supervise).
3. rule of law (No doubt this is an important sense, was the century liberalism XIX who got the state were limited by law. First, the law establishing the State. Later, it appears that it delimits the area of state action.)
The liberal idea of limiting state power was first applied in England in the late eighteenth century ("Rule of Law"). The State was not only obedient to the law, the Parliament did and thought.
However, the expression 'rule of law' was created in Germany to designate the control of government.
The French meaning is related to the protection of political freedoms. Although the rule of law, not liberal predominates over the term remains in legal lexical field, predominantly on the liberal rights of defense.
The bureaucratic-rational state of Weber is the rule of law today .. Over the past twenty years, there was a round of liberalism - neo-liberalism - which occurred primarily with Reagan and Thatcher.
The Greek city was a democratic face to face, of direct political participation. However, this does not mean that everyone is involved, since democracy was restricted to citizens, only a few had access to citizenship. The Greek world privileged the public sphere, the private world did not matter. To be a citizen, had to participate in the Agora. The public was not the state, but the Assembly.
Representative democracy begins to take hold in the seventeenth century and goes until the 70. The mechanism of representative democracy is indirect. Public space is no longer the Agora, but the Parliament. Participation takes place in two ways: narrowly or by proxy.
This democracy was built from three revolutions:
A) English Revolution (1640 - 1658)
With the dictatorship of Cromwell and the Glorious Revolution (1688-1689), the power of the sovereign is to have limits . The revolution brings as a contribution to the victory of Parliament and the advent of the rule of law.
B) American Revolution
The U.S. Constitution provides an important institutional contribution to representative democracy. Moreover, constitutionalism is created. There are innovations in the separation of powers, the whole state will be subject to constitutional principles. Neste momento, consagra-se a supremacia da Constituição revolucionária -- cujo objetivo é, afinal, limitar o poder -- com seu artigo 6o. The judiciary takes care of the constitutional control in the U.S., any judge may rule on that. (This, of course, does not give the judiciary supremacy over all others.)
C) French Revolution
This brought a contribution to democracy predominantly politics: the notion of freedom, equality and fraternity. In a world legal and constitutional post-45, the Constitutionalists created the expression "constitutional state" this is always evolving and incorporates the triad French ideal. It is the opinion of some who now seek to reach a new triad: diversity, solidarity and security.
70 Years: search for new paths. Creation of an "electronic agora." Never discussed both democracy in the last thirty years.
- Complexity of operation
- Works represented a bipolarity -
representative - Furthering the notion of fiction (the law is full of legal fictions, such as contract, legal personality, and so on. On the one hand, this form of democracy builds a legal fiction of popular will - the national will, most - and this is an exaggeration. The "Popular will" is constantly manipulated (as in elections, for example, has to choose one candidate to another not win, etc.)..
Its legal nature is peculiar, as well as nationality. On the one hand, suffrage is a subjective right ( facultas agendi ), but is also a public law. However, due to the importance of nationality and the right of suffrage, the public assumes this posture of protection, security.
rating right of suffrage: restricted or universal.
restricted suffrage is one in which there is the imposition of insurmountable one criterion (race, religion, sex, etc.).. Since universal suffrage has amplitude, an inclusive, unless restrictions such as voter age, mastering the English language, and so on.
History: The idea of universal suffrage is very much linked to the French Revolution, though it has not effected this right. There was a great struggle in nineteenth century England by universal suffrage, against the attempt to reform an electoral vote that allowed just over 40 years. Suffrage universal is actually just opened in France in the late nineteenth century.
suffrage in Brazil
There is in Brazil throughout the nineteenth century the suffrage, restricted. During the 1889 to 1930, the CF of 1891 gives the idea of universal suffrage (it was not therefore an achievement, but an assignment. Contradictorily, that universal suffrage is limited (they could not vote illiterate, poor, etc.. ), and its own jurisprudence of the Supreme Court did not extend voting rights to women.
This period ends with the revolution of 1930, which came to inaugurate the 'electoral truth' through the code election of 1932. There are still several constraints to universal suffrage, but there is a major transformation of the Brazilian electoral process with the formation of Elections and the granting of voting rights for women.
50 Years: the revolution is only adopted for the ballot vote. Already in the 60s, the great banner of basic reforms Jango is the vote of the illiterate, the possibility that this was only made after the constitutional 88.
Today, voting is voluntary between 16 and 18.
The electronic ballot box is another part of guaranteeing universal suffrage; it, Brazil is the world example.
The great revolution election in Brazil in the twentieth century (from the mechanisms of power - "electoral fraud", vote for someone on your goals and get other results, thus preventing the development to a more advanced level) had worldwide repercussions .
1 - Before CF/88, the parties were seen as entities of public law. The State then had some power to command.
2 - The system today is the gift of art. 17, § 2. This article is consistent with the system adopted by the CF (see chapeau of art. 17): total freedom to create political parties. Second paragraph, the parties would be the nature of private law. However, the state regulates them in a way.
3 - German system, where parties have a dual nature: they are private law and public law. Brazil did not escape much of this system since its CF will indicate ways to parties (for example, follow the democratic, national character). In Germany, the restriction to them is even greater. They have to have a domestic democratic order, to prevent resurgence of neo-Nazism and partigos extremists, authoritarian in general. There is also the criterion for voting barrier (which will be adopted in Brazil from 2006): The party must have at least 5% of the electorate to continue to exist (measure taken to prevent party fragmentation exacerbated).
is the study of all the elements of the legal concept of criminal. To be a crime, a fact has to be characterized by three elements:
* About the subject of crime:
The subject of crime can be as active and passive.
The active subject describes the elements described by the offense, the one who commits the crime. It may be proper (type there is a special quality of the agent, as in art. 312, embezzlement - a public official) or policy (anyone can commit the crime as art. 157, theft). There's also the crime that the active subject has to commit himself personally, so-called "own hands" as the 123 (infanticide).
Societas delinquere non potest. A pessoa jurídica não pode ser sujeito ativo de crime – como poderia uma empresa ter vontade ou personalidade? Como seria possível aplicar uma pena punitiva de liberdade? A Constituição Federal (art. 225 § 3 o .) estabeleceu uma abertura para uma possível sanção criminal para delitos ambientais (art. 21, lei 9.605/1998).
Pessoas jurídicas podem ser sujeitos passivos de alguns crimes.
Calúnia (138): crime falsamente imputado. A pessoa jurídica can not commit crimes, so can not be liable to account for the crime of libel.
Defamation (139): attribution actually rogue offensive reputation. Legal entity may be taxable.
Injury (140): offense against the dignity and decorum (no value judgments). The injury usually is reflexive, or is claimed by the constituent members of the corporation.
There acórdons against these determinations doctrinal.
Criminal Type
Everything has to be provided by law for any criminal conduct is considered. The type is a description of conduct by law, a definition that each element is essential (the lack of a part of the description in the conduct concerned atypicality).
§ 3 If the homicide is involuntary:
Penalty - detention of one to three years.
18/CP Article:
18 - It is said the crime:
I - intentional, when the agent wanted the outcome or assumed the risk of producing it;
; II - manslaughter, when the agent has given rise to the result of carelessness, negligence or malpractice.
Sole Paragraph - Except in cases specified by law, nobody can be punished for a crime actually provided, but when practice it intentionally.
Only capital crimes should be punished, unless otherwise prescribed by law.
Wetzel: the result is not is important, but the intention. Crimes are culpable because the conduct is a breach of duty of care goal.
course, do not admit guilty crimes trial since the agent did not think the result illicit. The attempt at least implies that the agent is in the acts of execution (iter criminis: the question, preparatory acts, acts of execution, consummation).
There is no compensation of guilt in criminal law, unlike civil law. The two agents are processed. There may be competition from blame, and it is up to the judge set the sentence, in accordance with Article 59/CP:
The judge, in view of culpability, the history, social behavior, personality of the agent, the reasons, circumstances and consequences of crime as well as the conduct of the victim, shall, as necessary and sufficient to failure and crime prevention:
, I - among the penalties comminated;
II - the amount of penalty, within the limits;
III - the original scheme of the sentence of imprisonment;
IV - to replace the custodial sentence imposed by another kind of penalty, if applicable.
causal nexus
The study of the causal links the agent's conduct with the result. Cause it's all a logical that interferes with the production of income. (Often, the agent's conduct prevents or accelerates a result that would occur anyway.) 13/CP Article:
"The result, which depends on the existence of crime, is only attributable to who gave you cause. It is because the act or omission without which the result would not have happened. "
Brazil adopted the theory of equivalence of causal antecedents (are the same as they are causes; cover criminal liability, however, the penalties will not necessarily equal): all the causes that lead to crime are considered. The theory of "adequate cause" (the "greater cause") is adopted only in civil liability, etc..
Article 13 refers only to crimes and crimes omissive materials unsuitable and does not apply to crimes formal, or merely to conduct omissive own, because we need a result to accomplish.
Failure to provide assistance when possible to do so without personal risk, to children abandoned or misplaced, or disabled person, or injured, or helpless in grave and imminent danger, or do not ask, these cases, help the public authority:
Penalty - detention of one to six months or a fine.
· formal Crimes: The law anticipates its completion. The result is described in law, the crime is punishable even if it has not reached the expected result. We can cite the kind described in Article 159, extortion by kidnapping.
· Crimes mere conduct, the legislature does not provide a result, only the action already is punishable. Example: disobeying the order of a public official (330); violation domicile (150):
Login or remain, illegal or cunningly, or against the will expressed or implied in law who, in a strange house or its dependencies:
Penalty - detention of one to three months or a fine.
concausas = two or more causes concur to produce a result. You must be a mental process of elimination for each question consider whether it is absolutely independent and relatively dependent. For a given result has been the way it happened, the agent's conduct is essential? If so, the agent liable for the crime, according to table below.
The sole paragraph of Article 13 provides that if the cause is dependent on supplementary part of the natural development of the agent's conduct, he will be criminally liable for the result. For example, the gangrene may be regarded as a natural consequence of an injury, medical malpractice, not).
:
:
| Causes | Absolutely independent (produces results without interference from the agent's conduct) | For dependent (requires the concurrence of two causes for the result) - art. 13 par. single |
| Legacy (occurs before the agent's conduct) | Agent not responsible for the result, only by guile. (If the individual takes poison before the agent attempts to kill him, the type is "attempted murder") | (If the person has hemophilia, and takes a stab, it is likely to die due to loss of blood.) having knowledge of the case, the agent responds to the result. Some argue that it should respond by intentionally not know if concausas. |
| Concurrent (happening at the same time) | The agent does not answer for the result, only by guile. (Authorship side, another person consumes the fraud attempted by the agent) | (Everyone has a heart attack shortly before being shot.) If the agent has knowledge of heart disease, accounts for the result. If not, no. |
| Supervening (occurring after the agent's conduct) | The agent does not answer for the result, only by guile. (After being shot, the individual is overwhelmed by the collapse of the building where it is) | (van hits motorcycle; fallen, this is beheaded by a bus.) The question concerned "by itself" the outcome. The agent responds when the result is a "natural extension" of its action (a minority believes that this he must aware of this.) |
Criminal The purpose of criminal law is to punish conduct harmful to society. To him it is the responsibility of the goods that need extra protection. is recommended, however, that he acts in as few cases as possible (principle of least possible). Principle of harmfulness: Not everything can be criminalized, nor state nor the individual's beliefs can be considered a crime. This hurts the desired minimum intervention. Nor should criminalize acts that can only harm the person. In principle anything that fits this situation is a crime, but there are cases in Brazil in which self-injury can be considered fraud against the INSS. Moreover, trafficking has been criminalized in the country, damaging the principle of harmfulness to order the drug user. Because of criminalization, marijuana was eventually lifted, and becoming socially acceptable through the myth that it does "so much harm." Morality can not invade the criminal law in these parameters - beliefs, habits, etc.. However, it is clear that the criminal law is a value system crystallized sanctions. What could be done to control tobacco consumption, for example, is the hipertaxação (which would discourage consumption), and not prohibition. The application of a penalty is a clear demonstration that the company failed. The criminal law must always be the ultimate, the last ratio, when all other rights are flawed. A society is more advanced as it has fewer laws, not the contrary. The Penal Code is primarily a series of guarantees given to avoid the penalties are too strong. Its essence is the principle of legal reserve, which has its origin in 1215, with the guarantee in the Constitution that no one would be deprived of their land without a previous law to punish. Kings had always set penalties according to his will. The principle of legality is the guarantee of law (law full preview). (Art. 5 the ., XXXIX/CF-1988) Introduction 219/CP Art: Kidnapping honest woman by violence, serious threat or deception, so lustful: Penalty - imprisonment from two (2) 4 (four) years. Article 155, § 1 the . (Theft) The penalty is increased by one third if the crime is committed during rest at night. Articles like the above need to (re) interpretation of culture. The doctrine is in charge of adapting them to present social conditions. Brazilian Penal Code, 1830 (the Criminal Code of the Empire, with the influence of Feuerbach and the Code of Argentina), 1890 (Republic), 1932 (Consolidation of criminal laws), 1940 (Current) 1969 (a great code made during the dictatorship. a little displeased the military, and ended up in vacatio legislation for nine years. Because there is a constitutional provision according to which law applies to more benign in favor of the defendant even if it is in vacatio laws, the Code of 1969 was used in some cases), 1984 (this year, the general part of the CP 1940 was repealed.) Currently, the legislature makes laws extravagant, but does not move much in the Code. Sources of Criminal Law: Under Article 22 of the Federal Constitution, under which the Union to legislate on criminal law. The common law is the only source of criminal law (MPs delegated laws and are not). There is no crime without a law to define. Member can not create types. Standards can be: Standards criminal blank These standards are born incomplete, with gaps or concepts to be explained by another statute or legal instrument. Ordinarily, this would be a problem, and finally brought about the overthrow of the law. The law on trafficking, for example (article 12 of Law No. 6368/76), which does not explicitly refers to as "narcotics." An ordinance of dimed, an agency of the Ministry of Health, lists the active substances being considered as such. Many lawyers believe that to respect the principle of legality, the complement to a standard blank should be legal, as is, for example, the addition to Article 237 of the CP (the complement is in the Civil Code). apparent Contest rules has been apparent competition rules when it seems that two standards (in force at the same time) apply to a criminal act (when it is actually only one). this case, in theory, there are two laws governing the same crime, but one is more complete, has more features. For example, art. 121 talks about murder. If a mother kills her child puerperal state, it applies Article 123, which speaks specifically that. Art. 171 talks about embezzlement; art. 187 (7661/45) talks about the embezzlement committed by someone bankrupt. alternative The offense is only applied if the first, more serious, is not one. For example, the Traffic Code, art. 311 (danger of harm) is not applied if the 302 (murder) is applicable. Two main aspects: antefato and pósfato impunível. What happens before / after would be a mere depletion of another offense, even if it is another crime. For example, the agent will not be indicted for distributing counterfeit money now if it was a forgery. If the type already there are several possible behaviors, will be applied only one sentence. criminal law in time Criminal law is retroactive always more beneficial (unless the defendant already served the sentence, obviously). time of the crime the Article 4. - Activity theory: the fact is considered when the action or omission by the agent, and never the result. the Article 3. - Law is only valid during a temporary period of time. Act while there is exceptional worth an exceptional circumstance, as the state of siege. Local crime the Article 6. - Ubiquity (mixed theory) - is considered the crime committed where the action / omission occurred and / or where the outcome occurred. Criminal Law space the Article 5. - The principle of territoriality: the law applies to the entire Brazilian territory Brazil: soil, subsoil, air space, embassies, maritime space, and some authors include the continental shelf. Any foreign vessel, on entering the territorial sea, is under Brazilian law. A foreign ship follows the flag in the place where he is going, however, if the agent is Brazilian, he is not extradited. the Article 7. - Exception. the Article 8. 9 and the . - It goes against the principle of "non bis in idem". 10 - criminal periods: the first account of the day (limitations period, penalty, etc.). Penal term, does not count the first day (art. 798 CPP). Art 11 - to despise fractions of time and money (no feathers hours, or cents). Article 12 - everything is in the General Part also applies to criminal laws extravagant. 13 - causation. 14 - attempt. Uses combined with other items - for example, "Article 121 § 2 the . W / c 14 (attempted murder)."
