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)."
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Public International Law I
07 / 03/05
Introduction
- Law and Society
- National Law and International Law
- Law and Order
connection between law and society, maintaining a cohesive and established rules -> view, order, predictability, social relations would have to be submitted and a rule. Importance of law as the guarantor of a certain order allowing coexistence among agents. In the post-1990, order and predictability were weakened with the new unilateral perspective, there is a feeling of insecurity. The discussion of international order is linked to the role of international law, as he regulates.
The DIP must be analyzed as the phenomenon it is, it has elements related to the order in question, they transcend their own territorial perspective. Globalisms located -> internal and external influences interfering in countries.
One type of international law arose from the nation-state, but international law is much older regarding their internal organization. Law of the People - the social body distinct from the other wanting to relate, diplomatic law, law of war, were always present.
Two milestones: 1648 and 1945.
1945: Crisis in the international system and the equation powers. End of the second . World War II and establishment of the UN.
1649: Peace of Westphalia. Ended the Thirty Years War and ushered in the European state system (regular, shared rules and respected among them, mutual recognition of sovereignty and provision for a concert uniform) appearance of the classic international law.
Features: European values serving as an engine for production of the principal norms of international law (states interested and interesting). It is a law of coexistence: the major concern of those States is to preserve their institutions and sovereignty, peaceful existence between them. The role of war: it was lawful, a normal way of solving conflicts.
1945: atomic bomb and the Holocaust left striking the destructive potential of the state, scaring the international community and leading to a movement to create international organizations concerned with peace, security, human rights and development ( from the 60's, decolonization). The war becomes unlawful use of force and occurs in only exceptions allowed by the UN. It is a law of cooperation, not only for coexistence.
11/03/2005
law, world order and democracy
- considering and expectations of a new world order
i. Replacement of bipolarity by a previous "new world order"
; ; ii. Europe as a political powerful that it could counteract the USA -> balance of power (not) happened
; ; ; iii. Strengthening of other regional blocs -> there was also no
; ; iv. ordination of persons in economic globalization (Bretton Woods) -> restatement of liberal principles to generate more development
; ; ; v. Strengthening and reforming the UN Security Council -> today there is a question about the UN
; ; ; seen. Decline of U.S. -> no longer a power so strong
; ; vii. Order more democratic
- Challenges for a conception of international law focused on the sovereign nation-state.
i. Manuel Castello
ii. Antonio Negri
iii. Anthony McGrum = globalists and skeptics
- International Society and Law in the construction of a concept of sovereignty today.
i. permanent conflict
ii. Terrorism Group (Madrid) is defining terrorism to international law
international law contributes to the establishment an international order, due to the predictability of related actions, because there are rules that are shared and followed by the actors, there is a rationality that orders relations. But it is not enough to establish rules, ultimately, there was an order based on bipolarity, focused on the force.
The new order is required to follow the Public International Law, and is based on fundamental values.
Finda bipolarity, there was an expectation regarding the new international order, for new foundations. It was an optimistic expectation of a multilateralism. However, this feeling was short lived due to a change of direction in American politics (Clinton's second term) due to a series of events. Multilateralism requires a degree of assimilation among players with fewer inequalities for there may be mutual recognition of sovereignty, but the more concentrated the power, the harder it becomes international law; superpowers like the U.S. may not want to comply with the law. Thus, the new multilateral order has not yet happened and there is instability, since it lacks the recognition (recognized in the Peace of Westphalia, allowing international law).
Authors think the major problem of international law is the transformation of the nation state in sovereignty, the very concept of sovereignty should be reformed. One wonders whether the sovereignty of a State is bound the territory, and if the state is still the main actor in international society, if it can solve the problems in the past. We recognize the limitation of state power, because there are international corporations more powerful than some states. Today there is a definite place for the exercise of power, is a moment of non-place, according to Negri. Power relations have a category imperial, the U.S. can exercise its power anywhere in the world without occupying territories. Manuel Castello already speaks of a network society, the state has to incorporate the transformations of globalization, integrating a network, having to share power with other factions in order to remain a sovereign state. In parallel, there has been a shift in the concept of state sovereignty. Multilateralism, the sovereign state is one that cooperates with the rules of international law. Today, the sovereign state must be democratic (because less democratic states come into conflict), you must accept the human rights and it is doubtful fight terrorism or are terrorists. The new order has to cope with ongoing conflict (atomic threat).
14/03/2005
Public International Law
- Definition: "set of standards positivated by the powers held by members of the international community so that the differential trace of these rules lies in form of production "(Pastor Ridruejo)
- Historical Perspective of International Law
- classic international law (1648)
- contemporary international law (the Soviet revolution - Different perspective of the capitalist - decolonization, technical and scientific revolution - new issues for discussion)
- Traces of material: the complex reality, dynamic, heterogeneous, somewhat integrated. (Note: inequality between states influence the Public International Law)
- customary Plan: States concerned, "those who have the opportunity to participate in the process of creating or changing a rule, contributing to their conduct (previous) training of a particular practice. "
- Plan consensus: art. 5 the . the Convention of 1969.
- Traces formal major
- Interstate, assumption of sovereignty and individual distribution of political power: voluntarism and relativism.
- Question of opposition to a general customary rule (rule of objection permanent)
- Predominance general provisions of the rules
- Indeterminacy, obscurity and vagueness.
- relational structure, institutional and community.
International law has merits due to its peculiar formation. International law is marked by classic Peace of Westphalia - the state system, mutual recognition of sovereignty, cooperation, coexistence, homogeneous system with European values, the war was an acceptable instrument.
In 1945 - the end of February . World War - there is the contemporary international law, with the internationalization of human rights, peace, security and development, issues are being addressed in international forums. Multilateral practices are beginning to be recognized as valid, new countries (the international community becomes more heterogeneous), need for a more collective.
Post-45 arise:
· Security: UN
· Human Rights: Declaration of Human Rights in 1948 (UN)
· ; Development and economic regulation: the Bretton Woods agreements (IMF, IBRD, gold-dollar standard) and New International Economic Order.
Foundation of international law: it is complex because it deals with many subjects, dynamic because it changes all the time, by having multiple heterogeneous states and poorly integrated because there is a uniform regulatory system. The main source of rules is the custom, and for him to be regarded as such, must be produced by Member normative (repeat consciousness of obligation) - only their conduct will be considered. Consensual plan is the plan of treaties and conventions, following a hegemonic logic.
production standards still follows an interstate dynamics. State sovereignty is considered fundamental. Public international law is the result of the principle of sovereignty and consensus on key issues.
Voluntarism: international law is primarily the result of the will of the States concerned.
Relativism: Some matters are dealt with by international law in different ways (different levels of integration). There are great difficulties with the hierarchy of international norms, as a consequence of the principle of the sovereignty issue (eg, a custom may prevail on a treaty, provided that the majority of that is more significant than this).
Rule of persistent objection: a State may object to a norm because it is a habit and there is no jurisprudence on the matter, as most of the rules is customary, they can be not enforced at all the moment. After all, the rules need to be a little vague, obscure and vague so that there is a leeway by the states, not going against their sovereignty. The only mandatory rules are those relating to human rights, which must be followed by States, irrespective of their wishes.
18/03/2005
Concept and rationale DIP
- Coexistence of structures "relational, institutional and community.
- cogent Standards: art. 53, 64 and 71 of the Vienna Convention Law of Treaties 1969.
- Introduction to sources of international law; art. 38 of the Statute of the ICJ (UN legal body).
International law is one produced on behalf of an international community, with the differential form his own production . This is linked to the powers typical of the international community in question. This brings us to the idea of interested States, causing a lack of structure institutional causes the public international law is basically an unwritten law.
International law must eventually produce generic standards, imperfect and doubtful, not to go against the internal rules of any State. However, to be effective, international law requires more precise rules, so it is important to the consensus of a large number of states, increasing the range of "interested States".
Note: x universal norm - the first content is generic, it is grace, and tends to become universal. The second ensures a large number of participants, tending to be applicable to all (standard cogent).
relational structure : among states.
institutional structure : the production goes through a standards organization like the UN, the will of the state is still manifested in the institutional framework.
Community structure: there is a "bond of solidarity material; some way, international society advances in its understanding of a particular area in order to share the same view. The will of each state does not matter anymore.
There is an evolutionary path. These structures vary with the materials in question and there is coexistence of them.
cogent standards are mandatory, will be imposed regardless of the state. They can not be revoked (except by a cogent standard), are universal, accepted and recognized by the international community and by the States concerned as a whole. The problem is that no one knows exactly which standards are cogent; most internationalist agrees to consider the norms regulating human rights as such.
Sources of International Law
main sources of international law: treaties, customs, general principles of law.
Auxiliary Sources: doctrine and jurisprudence.
The judge may decide in equity if the parties agree. There is no hierarchy among these sources.
Regardless of the nomenclature - pacts, conventions, etc.. - All agreements that are made in accordance with Art. 2 the . the Vienna Convention of 1969 are treated. Treaties may be bilateral or multilateral agreements.
03/21/2005
hierarchy of sources of DIP
- formal and material sources
- Article 38 of the ICJ
- Nguyen Quoc Dinh: international standard X fonts Formal DIP
- international standard "means the content, the substance of a rule drawn up according to intrinsic requirements of any particular formal source. However, a particular standard can originate from several different sources."
- Obs,: same scope of validity = anterior posterior derogating
- Summary: André Gonçalves Pereira and Fausto de Quadros
"The treaty may fall into disuse, being repealed, so by custom. If it is not cogent rule may be waived by treaty signed by all States are bound by opinio iuris to the practice that caused that custom. However, in practical terms, that equality of rank is limited. In fact, the universal custom, unless incorporated inalienable rule, could only be revoked by a universal treaty. This, however, does not prevent this practice, if not ius cogens, may be revoked interpartis the conclusion of a treaty between two or more States. "
- Conflict between domestic and international law
Actually, there is a defined hierarchy between sources of DIP. What counts is the consensus. So the standards are certainly cogent above the rest, but a conflict between custom and treaty, for example, no necessarily prevail.
The study of the sources of DIP studying the mode of organization, its form of expression. The sources are the formal rules themselves, according to art. 38 International Court of Justice. This statute says that there is a conflict, are listed conventions, treaties, doctrine, jurisprudence, and so on. There is a hierarchy between these sources, although there was much controversy over this issue - this is because there is a specific legislative power in the DIP, with a particular international dynamic.
Dinh argues that the international standard is a more generic concept, and therefore different from formal sources. The legitimacy of an international standard is through consensus among the states. The norm is the content, the precept that will bind the parties, the form of legal provision shared between states. This is so that custom may be more universal than the treaty, and may revoke it. In this case, the usual focus more prescriptive. So is the consensus that will tell the hierarchy, the recognition of normativity is given by the degree of universality (consensus Express). Conclusion: To understand the hierarchy of norms in the same scope of validity, you must apply the principles of universality and posterity (the later rule derogating from the above).
In principle, a treaty may repeal a custom, and vice versa, since this rule is not a cogent, and if ratified by all states. The only problem is to prove the universality of a treaty is more difficult than you do about a costume, since that is necessary to show the signatures of all countries.
About domestic and international law, there are two main theories: monism and dualism. However, none of them can satisfactorily explain the interaction between these rules.
Monism (with primacy of international law) : Kelsen, wanting scientificizes the study of law, created a "regulatory pyramid" on top of which would be a fundamental norm. Pressed by critics to define what would be this, Kelsen argued that it is international law. There was, therefore, the distinction between international law and domestic law. Are both parts of one state regulatory activity.
Some dissidents do not accept this supremacy of international law, they argue that the internal standard should take precedence over international sovereignty because it gives the internal field ( monism with primacy of national law ).
There is another kind of monism: the moderate monism, which is the theoretical recognition of a potential conflict between national law and international calls.
In dualism there is a difference, they are separate legal fields. What happens is a process of incorporating international standard domestically, so it is compatible with domestic law. This is what happens in parliament.
Positioning:
a) treaties on human rights - after the Constitutional Amendment 45, we can say that the this matter the position of Brazil is a monism with primacy of international law. International standards of human rights are about the same level of constitutional amendments and thus can not be contradicted by ordinary laws.
b) STF - With respect to human rights, the Supreme defends a monism with primacy of international law, but not full, international standards can not repeal entrenchment clauses. Already common are treated the same level as ordinary laws can not repeal the Constitution, only ordinary laws, according to posterity.
c) NC - Some authors feel that the positioning of Congress is dualistic, due to the recognition of the need incorporation.
d) Internationalists - depends on the matter, in relation to human rights would be a full monism with primacy of international law, they relativize the sovereignty, for the cogent norms could withdraw up to the entrenchment clauses.
28/03/2005
International Treaties
- Definition: A formal agreement completed and intended to produce legal effects. Most authors love the concept of Article 2 the . the Vienna Convention on the Rights of the treaties of 1969.
- Actors - art. 3 the . (in writing, between states and often with more than one instrument).
- Conditions of validity of treaties
- capacity of the parties
- Qualification of signatory agents
- lawful object and possible (art. 53 - jus cogens)
- Mutual consent (actual manifestation of the will) : error, fraud and corruption, coercion.
International treaties are agreements between subjects of international law that conform to international standards and are designed to produce effects at the international level (article 2 the . the Vienna Convention). It is usually a formal treaty written (before 69, could be oral communications from diplomatic notes). More than one instrument means you have more than one route, ie, the tradition is to be written in three languages, one of which is neutral, to provide an interpretation.
The conditions necessary for the treaty to be considered valid are:
a) be recognized by the international community with subjects of international law;
b) ; to international law is not enough just the guy to be recognized, because the official signatory state must have authorization to sign the treaty. Where are the plenipotentiaries typical agents (some agents of the executive who are empowered to make treaties); other agents may do so only if they have a letter giving them full powers.
c) The lawfulness of which is linked to the perspective of hierarchy of norms, custom, for example, can not go against a cogent standard.
d) The actor has to be really expressing their will, can not be coerced into being at that time. When a treaty is concluded there is error (the agent itself had a poor understanding of a fundamental aspect of the treaty), deceit (the agent is taken to make an erroneous interpretation of the text), corruption (corruption is a signatory of the agent) or coercion (the threat or use of force - art. 52), the treaty is annulled.