Tipo total de injusto.
In this study, a review of unlawfulness is made based on the theory of the negative elements of the type, analyzing its judgment and the need of its enforcement for the development of Brazilian Criminal Law. The theory of the negative elements of the type arose in Germany in the 19th century through...
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| Main Author: | |
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| Format: | Article |
| Language: | Portuguese |
| Published: |
Universidade FUMEC, Faculdade de Ciências Humanas, Sociais e da Saúde
2008
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| Subjects: | |
| Online Access: | http://dialnet.unirioja.es/servlet/oaiart?codigo=4047772 |
| Source: | Meritum, ISSN 2238-6939, Vol. 3, Nº. 1, 2008, pags. 213-254 |
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| Summary: |
In this study, a review of unlawfulness is made based
on the theory of the negative elements of the type, analyzing its
judgment and the need of its enforcement for the development
of Brazilian Criminal Law. The theory of the negative elements
of the type arose in Germany in the 19th century through the
works of Adolf Merkel as a way to find a solution to the gap
left by the old German Penal Code concerning the error relative
to the presupposed legal facts of a justification cause. Merkel
and his followers understood that the penal type should have
two sides: a positive one, established by indiscriminate conduct,
and a negative one, consistent in the absence of justification
causes. In this manner, vagueness doctrine and illegality
constitute a single element in the structure of the criminal
offense, forming the total typification of unlawfulness. In this
order of ideas, it is admitted that there is illegality, or
unlawfulness, exclusively criminal, that can only have relevance
to Criminal Law from the moment it is typified. With the
adoption of the total type of unlawfulness, the interpreter would
no longer confront the insurmountable obstacle of application,
under the aegis of the principle of democracy, the so-called open
types. On the other hand, the error about the presupposed legal
facts in a justification cause would no longer be a kind of error of
type, a hypothesis perfectly suited to the statute described in Art.
20, paragraph 1 of the Brazilian Penal Code. The study of the
penal type and its relationship with the opinion of illegality of
conduct described by it, from the doctrinal viewpoint proposed
by Adolf Merkel, with its important implications in the theory of
crime, could make important contributions to the future reading
of the theory of criminal offense, being established in a model
that would be appropriate to fulfilling the important function of
guaranty of penal type, which is indispensable to the juridical
order of a Democratic State of Law. |
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