How To Make Authorization Letter

I (JUR1101) - Part 2 (Priscilla) Criminal

Theory of Crime

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:

1. Fact typical (typicality / legal reserve / result) ;
2. Illicit (Unlawful is the rule of all costumes. The lawfulness of conduct is given by exclusion: there must be a law saying that it is lawful. For example, abortion is a crime, but not in cases of rape, murder is a crime, but not committed in self-defense) ;
3. Guilty (Not an element of the crime, according to Damasio de Jesus. It is the study of particular person: the agent is guilty, he could be attributed to criminal liability? Liability , etc.). ;
4. (Punishable - according to some English jurists).

• Fact typical
• Conduct (human *)
• intentional / negligent
• intentional: the willingness or assumption of risk.
• fault: non-pursuit of illicit purposes, negligence, malpractice.
• commissive / omission
• Commissioner: active material act (action).
• omission: omission.
• Results (in crimes that depend on the outcome - for example, no body can not charge someone for murder)
• causal nexus (causal relationship between conduct and the event ).
• typicality (legal reserve must be provided by law).

* 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).

• typically formal (subsumption, fitness apparel to the standard) X conglobante (it is not possible for another branch of law or custom encourage, stimulate activity).
• basic types (eg murder) Xx derivatives (manslaughter).
• x Types closed open (these differ from criminal laws in white). An example of open offense is in art. 121, § 3 ^the :

§ 3 If the homicide is involuntary:

Penalty - detention of one to three years.

• elements like:
• Elements objectives (descriptive or normative) and subjective (desire, deceit, "special order ...")
• The normative elements depend on the valuation of the interpreter ("Honest woman", "something strange mobile", etc.).
• Type wrongful
• Dolo is free will and conscious of describing the typical behavior. The agent must be aware of all the elementary type, so there is no type error, and has to want to produce the result
• In Brazil, it is planned the fraud from two prisms: the theory of consent (the agent takes the risk of the outcome) and the theory of the will.
• Dolo any conscious Guilt X (the agent sincerely believes that it can avoid the result)
• Dolo right X intentionally indirect
• Dolo Direct : classical will.
• Dolo indirect: possible (see above) or alternative (may be an alternative for the person or the outcome. The role of the lawyer is to enforce the principle of in dubio pro reo).
• Type wrongful
• Guilt: accident. The agent never wanted to cause the result, but there is a causal link between his conduct and the result produced. The crime is committed manslaughter when someone does not respect their duty of care objective, acting with negligence, incompetence or recklessness (art. 18 ^the ., II).
• Recklessness: doing something that should not be done.
• Neglect: do something that should be done.
• Malpractice: not observed the rule of trade, profession or art.
• elements of guilt:
• conduct human volunteer, which can be commissive or omission (for certain conduct lawful purpose, unlike the fraud);
• goal Breach of duty of care by the agent, care that could prevent this outcome, obviously. Failure must be the cause direct result.
• Result illicit or was not intended by the agent.
• causal nexus, must exist between the agent's conduct and outcome.
• Predictability objective:
• unconscious guilt (is atypical): the agent had no way to predict the outcome. (This assessment is based on the hummus medius, a man of prudence regular, would be able to predict.)
• conscious Guilt: the result is predictable, but not provided, the risk is not assumed.
• subjective Predictability: Some scholars argue that each case - the agent, the circumstances - must be analyzed.
• typicality.
• Crimes guilty are not punished with imprisonment, but with alternative sentences.
• There's only crime culpable if this exception is provided by law.

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).

• inappropriate guilt: criminal conduct that is treated by law as guilty because of the circumstances in which happens, covered up by discriminating putative (art 20 § 1 ^the .) as the putative self-defense, which only existed in the imagination of the agent. Improper attempt admits guilt, it is willful misconduct.

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.

• Crimes materials: no corpus delicti, tangible result, physical transformation. For example, homicide (121), embezzlement (312), damage (163).
• Crimes omissive inappropriate: the agent had a particular duty to ensure that the result did not occur.
• Crimes omissive own: when the law has already described the behavior of omission - for example, art 135/CP:

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.)