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I (JUR1101) - Part 1 (Priscilla)

Criminal I

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:

• incriminating - primary precept (caput), secondary (sets off)
• non-incriminating:
• permissive: abetting the conduct of the agent. They can do so justification (art. 23 CP) or exculpante (art. 26 CP)
• explanatory (art. 327 CP)
• complementary (art. 59 CP)

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).

• Principle Specialty

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.

• principle of subsidiarity

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.

• principle consunção

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.

• principle alternativity

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).

• Abolitio criminis - Should a law that will disregard any conduct as criminal, it applies to art. 61 CPP - the process / investigation officer must be filed, all the effects of criminal convictions disappear (name cleared, there will be a repeat offender, etc.). but does not exclude civil effects of the sentence (duty of indemnification, etc.)..

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.

• permanent Crimes: the time of the crime until he is finished. The crime is consunção permanent (711/STF summary). For example, art. 159, extortion by kidnapping.
• Crimes Continued: When there are several very similar crimes (such as robbing several people in one location), the legislature creates the fiction that all consist of a single crime. Applies the penalty of 5 / 3 of the penalty set in type.

^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.

• Principle of defense - exceptionally, to punish a crime committed abroad. Brazil has jurisdiction over cases concerning the protection of national heritage, etc.. (Eg, an assault on Petrobras or an agency of the Bank of Brazil abroad).
• Genocide, art. 7 ^the ., I, d.
• principle of universality - Brazil, by treaty, undertook to punish the agent, even if the crime has not occurred in the country. For example, narcotics trafficking, slave, etc..
• active personality principle - the active subject of crime is Brazilian, he can be tried here in accordance with the conditions listed in § 2 ^the .
• ^the § 2. d) "Non bis in idem ," one can not be convicted twice for the same crime.
• § 3 ^the . Passive personality principle (crime committed against Brazil) - Brazil only renders the alien if the country does not request extradition or deny whether Brazil (CF / treated).

^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)."