Criminal Law and Criminal Law Military . Brief summary and considerations

Daniel Ribeiro Vaz
Graduated in Law from the Law Faculty of the Alta Paulista ( Fadap ) , (2000 ) . Postgraduate in Criminal Law and Criminal Procedure Law Foundation For Euripides Soares da Rocha ( UNIVEM ) , ( 2001/2002 ) . He is currently a professor at the University Tiradentes and Assistant Coordinator of Law Course . (UNIT ) .

April 1, 2013 17:12 - Updated on April 1, 2013 17:12
Criminal Law and Criminal Law Military . Brief summary and considerations . Contest Analyst MPU .
Criminal Law and Criminal Law Military . Brief summary and considerations . Contest Analyst MPU . 1 - Important Notes - Criminal Law . 3 - Important Notes - Military Penal Law . Material related to class Analyst prosecutors in Union Cycle Portal : http://www.portalciclo.com.br/ver_outros_concursos.asp?cod=283 1 - Important Notes - Criminal Law . We divide the theme APPLICATION IN CRIMINAL LAW ...
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Criminal Law and Criminal Law Military . Brief summary and considerations . Contest Analyst MPU .

1 - Important Notes - Criminal Law .
3 - Important Notes - Military Penal Law .

Material related to class Analyst prosecutors in Union Cycle Portal :

http://www.portalciclo.com.br/ver_outros_concursos.asp?cod=283

1 - Important Notes - Criminal Law .
We divide the theme APPLICATION IN CRIMINAL LAW on TWO SPECIES :
a) APPLICATION IN CRIMINAL LAW IN TIME ;
b ) APPLICATION IN CRIMINAL LAW IN SPACE .
Among PRINCIPLES OF CRIMINAL LAW , we PRINCIPLE OF LEGALITY provided in FEDERAL CONSTITUTION [ 1 ] and the PENAL CODE [ 2 ] and we also have the principle of anteriority , in fact the principle of anteriority beside PRINCIPLE TAXATIVIDADE are PRINCIPLES that is INSIDE THE PRINCIPLE OF lEGALITY therefore have the PRINCIPLE OF lEGALITY features four (4 ) developments :
1 - Criminal Law has to be BACK
Principle of anteriority OF CRIMINAL LAW .
Ie , the LAW will have to be PREVIOUS PRACTICE OF CRIME
2 - Criminal Law must be WRITTEN
Means that THERE IS CUSTOM incriminating , or can ESTABLISH ONLY LAW ( CREATE ) CRIMINAL OFFENSES , COSTUMES has the dual objective in CRIMINAL LAW :
a) ORIENT NATIONAL CONGRESS so that it legislates in Criminal Law , eg , creation or revocation of certain crimes ;
b ) in AUXILIA INTERPRETATION OF CRIMINAL LAW , CRIMINAL LAW because it uses some terms that need to be interpreted in the light of COSTUMES , eg : CRIMES AGAINST HONOR , " Defamation . Article 139 - defame someone , charging him indeed offensive to suareputação Penalty - imprisonment from three months to one year and fine . " REPUTATION the term should be construed in accordance with COSTUMES , or " Furto.Art . 155 - Subtract , for himself or for another , unrelated thing mobile Penalty - imprisonment of one to four years and a fine . § 1 - The penalty is increased by one third if the offense is committed during the night rest . " , The term REST OF DIFFERENT NIGHT NIGHT is because REST NUTORNO should be interpreted according to CUSTOMS .
3 - Criminal Law must be STRICT
Means that only admits ANALOGY IN CRIMINAL LAW IN SUPPORT OF DEFENDANT ( ANALOGIAIN BONAM AWAY ) and NEVER that harms DEFENDANT ( ANALOGY IN MALAM AWAY ) . Analogy is a USE LAW to regulate a particular theme in ABSENCE OF LAW ( GAP ) - INTEGRATION OF CRIMINAL LAW . Eg public official who requests a particular advantage to stop doing certain official act , the public official practice CORRUPTION PASSIVE [ 3 ] , because it REQUESTED ADVANTAGE but NOT PRACTICE particular CRIME , CORRUPTION as ACTIVE [ 4 ] has " Offer or promise undue advantage " in the case of the verbs ( core type ) were not performed, because although cONDUCT IS LOOKING ( ANALOG ) would impair the defendant. If it is accepted in the case of RAPE ABORTION , art. 128 , II , CP [ 5 ] Criminal Law NOTHING HAS ( GAP ) on ESTIUPRO OF VULNERABLE , but ANALOGY IN DEPARTING BONAM admits also the realization of Abortion .
4 - Criminal Law should be clear and objective
PRINCIPLE OF TAXATIVIDADE .
Means the Criminal Law can not generate doubts to its recipients
OBS1 . When talking about CRIMINAL LAW LAW , we must remember that we have multiple PRIMARY SPECIES REGULATIONS FEDERAL CONSTITUTION provided in [ 6 ] , among these STANDARDS PRIMARY SPECIES just a few could afford and regulate the Criminal Law :
I - Amendments to the Constitution
II - complementary laws
III - ordinary laws
OBS1 . After the EC N.45/04 we can add INTERNATIONAL TREATIES . On the subject fleeing criminal law , see text Luiz Flávio Gomes [ 7 ] and VALÉRIO Mazzuoli [ 8 ] .
Regarding CRIMINAL LAW ENFORCEMENT , we have:
a) APPLICATION IN CRIMINAL LAW IN TIME = we RULE , called Tempus regit ACTUM , ie , apply the Penal Law that is in effect. This rule have EXCEPT :
EXTRATIVIDADE OF CRIMINAL LAW , which means to apply a Criminal Law beyond the scope of the agreement, which is divided into two SPECIES :
1st ) retroactivity OF CRIMINAL LAW : application of a CRIMINAL LAW MORE BENEFICIAL to events that occurred BEFORE the period of its validity , expected in FEDERAL CONSTITUTION ( Article 5 . XL - the criminal law is not retroactive, except to benefit the defendant ; [ 9 ] ) and pENAL CODE ( Act criminal in time Article 2 - No one can be punished for the fact that subsequent law fails to consider crime , stopping by virtue of it running and criminal purposes of the sentence . (Amended by Law No. 7209 of 11.07.1984 ) sole Paragraph - the later law , which in any way encourage the agent applies to the facts above , although decided by a final judgment of conviction . (Amended by Law No. 7209 of 07.11.1984 ) );
2 nd ) ULTRATIVIDADE OF CRIMINAL LAW : application of a CRIMINAL LAW MORE BENEFICIAL , ALREADY WITHDRAWN the facts occurred DURING THE PERIOD OF HIS TERM, ie , Criminal Law to be MORE BENEFICIAL and due to the fact that the CRIME was committed DURING PERIOD OF HIS TERM, will have its effects reflected even now revoked .
OBS1 . The ULTRATIVIDADE CRIMINAL LAW has no provision EXPRESS FEDERAL CONSTITUTION nor the PENAL CODE , CREATING DOCTRINAL and is also regarded as ironclad clause .
OBS2 . Only speak in EXTRATIVIDADE OF CRIMINAL LAW ( CRIMINAL LAW retroactivity and ULTRATIVIDADE OF CRIMINAL LAW [ 10 ] ) if the CRIMINAL LAW FOR MORE BEFÉFICA therefore CRIMINAL LAW MORE BEFÉFICA is a GENDER that extra TWO SPECIES :
1st ) Novatian or Lex Legis Mellius mitior
It is a CRIMINAL LAW MORE BEFÉFICA that STILL CONSIDERS THE FACT AS CRIME but BENEFIA THE DEFENDANT IN ANY WAY , reducing criminal creating rights and benefits , etc. .
2 ) abolitio Criminis
It is a CRIMINAL LAW MORE BEFÉFICA NOT MORE SEE THE FACT AS CRIME therefore DELETING UP CRIME .
                OBS1 . With respect to retroactivity PRINCIPLE OF THE CRIMINAL LAW MORE BENEFICIAL , we have a FLEBILIZAÇÃO FOUND THE THING because even though we already have criminal sentence of res judicata ( or not ) , Criminal Law will backdate .
OBS2 . With thier MORE SEVERE CRIMINAL LAW ( Lex Legis GRAVIOR or Novatian in peius ) , it is a Criminal Act which ANYWAY harms the defendant , or creating crimes , or increasing the penalty for existing crimes , reducing Rights and benefits the defendant , these hypotheses CRIMINAL LAW WILL IRRETROATIVA .
Still regarding CRIMINAL LAW ENFORCEMENT IN TIME TEMPORARY we CRIMINAL LAW AND EXCEPTIONAL and TIME CRIME .
Law exceptional or temporary ( Included by Law No. 7,209 , of 07.11.1984 ) . Article 3 - The law exceptional or temporary , although after the end of its duration or ceased circumstances that determined applies to the fact practiced during his lifetime . (Amended by Law No. 7209 , 1984 )
exceptional law
Is the Criminal Law that applies within a TIME OUTSTANDING, ie within a TIME DETERMINED , eg a particular Criminal Law applied DURING A STATE OF EMERGENCY ( STATE OF SIEGE or THE STATE OF DEFENSE ) , so if a CRIME IS DONE in this period STATE OF EMERGENCY , even when it ends , we apply the LAW exepcional .
temporary law
Is the Criminal Law that applies within a predetermined time by the legislator , ie , unlike in the example above , here is TIME stipulated in Law , eg , 6 months , 1 year , 1 month, etc. so if a crime is committed in this period, even when time is up predetermined apply to TEMPORARY LAW .
OBS1 . Applies to LAW exepcional or TEMPORARY LAW EVEN BEING MORE SERIOUS .
OBS2 . The LAW and the LAW TEMPORARY exepcional are ULTRATIVAS , ie APPLY to FACTS OCCURRING DURING THE PERIOD OF HIS TERM, even REPEALED NOW .
Note 3 . Regarding RETROATIVIODADE will ONLY apply with thier CRIMINAL LAW MORE BENEFICIAL but regarding ULTRATIVIDADE can apply it in cases of MORE SEVERE CRIMINAL LAW ( LAW and the LAW exepcional TEMPORARY , art. 3, CP )
Regarding the TIME and PLACE OF CRIME , have three (3 ) THEORIES always charged on Public Procurement .
TIME CRIME .
1 - Activity Theory
It is considered that the crime was committed in the TIME CONDUCT ( ACTION OR OMISSION )
2 - Theory of Income
It is considered that the crime was committed in the TIME RESULTS ( ACTION OR OMISSION )
3 - Mixed or Theory of Ubiquity
It is considered that the crime was committed in the TIME CONDUCT ( ACTION OR OMISSION ) in TIME AS A RESULT
With regard to the CRIME TIME OF PENAL CODE adopts THEORY OF ACTIVITY :
Time of the crime
Article 4 - It is a crime committed at the time of the action or omission, even if the other is the time of the result . (Amended by Law No. 7209 , 1984 )
PLACE OF CRIME .
1 - Activity Theory
It is considered that the crime was committed in PLACE CONDUCT ( ACTION OR OMISSION )
2 - Theory of Income
It is considered that the crime was committed in the PLACE RESULTS ( ACTION OR OMISSION )
3 - Mixed or Theory of Ubiquity
It is considered that the crime was committed in PLACE CONDUCT ( ACTION OR OMISSION ) in AS PLACE OF INCOME
Regarding PLACE OF CRIME , CRIMINAL CODE adopts THEORY OF MIXED OR UBIQUITY :
Scene of the crime (Amended by Law No. 7209 , 1984 )
Article 6 - It is practiced crime in place of occurrence of the act or omission , in whole or in part , and where it has produced or would produce the result . (Amended by Law No. 7209 , 1984 )
OBS1 . In CRIMINAL PROCEDURE , as RULE APPLIES TO THEORY OF INCOME :
Article 70 . The jurisdiction will , as a rule , determined by the place where the offense is consummated , or , in case of trial , the place in which it is practiced the last act of execution.
therefore :
Time of Crime ( CRIMINAL LAW )
THEORY OF ACTIVITY
Place of Crime ( CRIMINAL LAW )
THEORY OF MIXED OR UBIQUITY
Competence ( CRIMINAL PROCEDURE )
THEORY OF INCOME ( as RULE [ 11 ] )
b ) APPLICATION IN CRIMINAL LAW IN SPACE .
See ROGÉRIO SANCHES [ 12 ] , but in summary we have in BRAZIL applies the principle of territoriality , ie : CÓGIGO CRIMINAL , 5th - Applies to Brazilian law , without prejudice to international conventions, treaties and rules of international law , crime committed in the national territory . (Amended by Law No. 7209 , 1984 ) . Therefore , the CRIME DONE IN BRAZIL applies to CRIMINAL LAW BRAZILIAN , a matter of SOVEREIGNTY ( principle of territoriality ) .
OBS1 . In some contests more complicated , mainly produced by CESPE - UNB , the correct answer is the application of the Principle of territoriality SEASONED , since this alternative exists , if none, the correct answer would simply territoriality principle . This is because the principle of territoriality has EXCEPTIONS brought by the art. 5, CP , so there is m absolute Principle .
So we have three (3 ) or temperaments EXCEPTIONS TO THE PRINCIPLE OF TERRITORIALITY :
the - conventions , treaties and rules of international law : INTERNATIONAL LAW can thus circumventing the rule that the crime committed in Brazil , applies to Brazilian Penal Law , eg the Vienna Conventions of the 60 governing diplomatic and consular immunities stating that, even though diplomats and consuls committing crimes in Brazil , will apply the law of their country of origin . Diplomats , any crimes , Consuls , only crimes functional ( related to the function ) and which have been carried to the Consulate Jurisdiction .
b - parliamentary immunity : the weather FEDERAL CONSTITUTION :
Article 53 . Deputies and Senators shall be inviolable civil and criminal , for any of their opinions , words and votes . (Amended by Constitutional Amendment No. 35, 2001 ) [ 13 ] . § 2 Since the issuance of the diploma , members of Congress can not be arrested, except in the act of felony . In this case , the case will be sent within twenty-four hours at their house , so that , by a majority vote of its members , decide on the arrest . (Amended by Constitutional Amendment No. 35, 2001 ) [ 14 ]


c - extraterritoriality : just reading the article . 7, CP , because some charged [ 15 ] Contests in Public due to many international treaties have some parties altered rules of the Penal Code .
Extraterritoriality (Amended by Law No. 7209 , 1984 )
Article 7 - They are subject to Brazilian law , though committed abroad : (Amended by Law No. 7209 , 1984 )
I - crimes : (Amended by Law No. 7209 of 11.07.1984 )
a) against the life or liberty of the President ; ( Included by Law No. 7209 , 1984 )
b ) against property or public faith in the Union, the Federal District , State , Territory , the Municipality of public enterprise , mixed-capital company , an agency or foundation established by the Government; ( Included by Law No. 7,209 , of 1984)
c ) against the public administration , for whom is at your service ; ( Included by Law No. 7209 , 1984 )
d ) of genocide , when the agent is domiciled in Brazil or Brazil ; ( Included by Law No. 7209 , 1984 )
II - crimes : (Amended by Law No. 7209 of 11.07.1984 )
a) that , by treaty or convention , Brazil undertook to suppress ; ( Included by Law No. 7209 , 1984 )
b ) committed by Brazil; ( Included by Law No. 7209 , 1984 )
c ) practiced in Brazilian aircraft or ships , merchant or private property , when in a foreign country and there will not be judged . ( Included by Law No. 7209 , 1984 )
§ 1 - In the case of item I , the agent is punished according to Brazilian law , even if acquitted or convicted abroad . ( Included by Law No. 7209 , 1984 )
§ 2 - In cases of section II , the application of Brazilian law depends on the concurrence of the following conditions : ( Included by Law No. 7209 , 1984 )
a) get the agent in the national territory ; ( Included by Law No. 7209 , 1984 )
b ) be the fact also punishable in the country where it was committed; ( Included by Law No. 7209 , 1984 )
c ) the crime being included among those for which Brazilian law authorizes extradition ; ( Included by Law No. 7209 , 1984 )
d ) not have been the agent acquitted abroad or not there have paid the penalty ; ( Included by Law No. 7209 , 1984 )
e) not have been the agent pardoned abroad or , otherwise, not be extinguished punishment according to the law more favorable . ( Included by Law No. 7209 , 1984 )
§ 3 - The Brazilian law also applies to the crime committed by foreigners outside Brazil against Brazil , if the conditions laid down in the previous paragraph : ( Included by Law No. 7209 , 1984 )
a) has not been sought or was denied extradition; ( Included by Law No. 7209 , 1984 )
b ) there was a request from the Minister of Justice . ( Included by Law No. 7209 , 1984 )


OBS1 . TERRITORY can be interpreted in three (3 ) SPECIES :
1 - National Geographic Territory
Limited space border
2 - National Territory by legal
Sea ( Territorial Sea , 12 nautical miles ) ;
Land occupied by the State ;
rivers ;
Lagos ;
Inland seas ;
gulfs ;
bays ;
ports
3 - National Territory equated or fiction (some place within the National Territory law)
PENAL CODE . Territoriality . Article 5 . § 1 - For the purposes of criminal law , are considered as an extension of national territory vessels and aircraft Brazilian public nature or for the Brazilian government wherever they are, as well as aircraft and vessels Brazilian merchant or property private , who are engaged respectively in the corresponding airspace or sea. (Amended by Law No. 7209 , 1984 )
Therefore : [16]
the Public - aircraft and ships ( war , military service or public service
Applies to BRAZILIAN CRIMINAL LAW .
b - private aircraft and ships in alien sea
Applies to FOREIGN LAW
c - aircraft and private vessels in Brazilian territorial waters
Applies to BRAZILIAN CRIMINAL LAW .
d - private aircraft and ships at sea
Applies to LAW ' FLAG ' PRINCIPLE THAT SPORTS - FLAG or FLAG PRINCIPLE
Other topics contained in the notice , will simply reading PENAL CODE :
Pena served abroad (Amended by Law No. 7209 of 07.11.1984 )
Article 8 - The punishment served abroad reduces the penalty imposed for the same crime in Brazil , where several , or it is computed when identical . (Amended by Law No. 7209 of 07.11.1984 )
Effectiveness of foreign judgments (Amended by Law No. 7209 , of 11.07.1984 )
Article 9 - The foreign judgment , when the application of Brazilian law produces the same consequences in the species , can be approved in Brazil for: (Amended by Law No. 7209 , of 07.11.1984 )
I - compel the condemned to repair the damage, refunds and other civil effects ; ( Included by Law No. 7209 of 11.07.1984 )
II - subject it to a security measure. ( Included by Law No. 7209 of 07.11.1984 )
Sole Paragraph - The approval depends on : ( Included by Law No. 7209 of 11.07.1984 )
a) for the purposes specified in subsection I , application of the interested party ; ( Included by Law No. 7209 of 07.11.1984 )
) For other purposes , the existence of an extradition treaty with the country whose judicial authority emanated from the sentence , or , in the absence of a treaty , the requisition of the Minister of Justice . ( Included by Law No. 7209 of 07.11.1984 )
Count term (Amended by Law No. 7209 of 11.07.1984 )
10 - The day of start is included in calculating the period . Count the days , months and years by the common calendar . (Amended by Law No. 7209 of 07.11.1984 )
Fractions not computable pen (Amended by Law No. 7209 of 07.11.1984 )
11 - Despise up in custodial sentences and the restriction of rights , the fractions of day, and to a fine , the fractions cruise . (Amended by Law No. 7209 of 07.11.1984 )
Special legislation (Included by Law No. 7209 of 11.07.1984 )
Article 12 - The general rules of this Code apply to the facts complained of by a special law , if it lacks differently . (Amended by Law No. 7209 of 07.11.1984 )
OBS1 . Who HOMOLOCA FOREIGN SENTENCE after EC N. 45 / 04 is the STJ .
OBS2 . CRIMINAL TERM INCLUDES THE DAY OF HOME AND EXCLUDES THE FINAL DAY (dies ad quem ) , it is MSI BENÉFICP THE DEFENDANT . In CRIMINAL PROCEDURE EXCLUDES THE DAY OF HOME (dies a quo ) and INCLUDES THE FINAL DAY (dies ad quem ) , not to be confused .
2 The typical fact and its elements . 2.1 Crime and tried consummated . 2.2 Pen attempt. 2.3 Contest crimes . 2.4 Illegality and causes of exclusion. 2.5 Excess punishable. Guilt 2.6 . 2.6.1 Elements and causes of exclusion.
Who want some refinement on THEORY OF CRIME , we have had the opportunity to write on the subject [ 17 ] .
THEORY OF CRIME : THE FIRST ELEMENT OF CRIME FACT is TYPICAL :
1 ) FACT TYPICAL ( legal or abstract model of conduct refer to what is described in the Act , " kill someone " for example) , and consists of four (4 ) ELEMENTS :
the conduct -
PRINCIPLE OF EXTERIORIZATION , ie HUMAN BEHAVIOUR and CONDUCT OF LEGAL ENTITY ( STF and STJ ) .
The line shall be :
1 - = commissive conduct performed by an ACTION , one DO , eg " kill" , " subtract " , " fake " , etc. ;
2 - + omission conduct embodied by a DO - NOT a OMISSION, which can be of two kinds:
2.1 = own conduct omission occurs when the very typical fact already establishes a " stop doing " , eg : Omission relief . Article 135 - Failure to provide assistance when possible to do so without personal risk , the child abandoned or lost , or injured or disabled person , or helplessness in grave and imminent danger , or do not ask, in these cases , the aid of public authority :
Penalty - detention of one to six months , or a fine .
Sole Paragraph - The penalty is increased by half if the omission results in serious bodily injury , and tripled if death results .
2.2 - omission improper conduct or crimes commissive = default , checked in situations where the subject has the DUTY TO ACT , called GUARANTEE or WARRANT : Article 13 . Relevance of omission ( Included by Law No. 7,209 , of 11.07.1984 ) ; § 2 - The omission is criminally relevant when omitting could and should act to prevent the outcome . The duty to act is on the party : ( Included by Law No. 7209 of 11.07.1984 )
a) has by law obligation of care, protection or surveillance ; ( Included by Law No. 7209 of 07.11.1984 )
People who establishes the LAW DUTY TO ACT , parents in the face of minor children , guardians in relation to wards , trustees guardianship of me face , an official of the prison system in the face of the prisoner , doctors , police , etc.
b ) otherwise assumed the responsibility to prevent the outcome ; ( Included by Law No. 7209 of 07.11.1984 )

" Otherwise " means for LEGAL BUSINESS , eg CONTRACT bodyguard , lifeguard , etc.
OBS1 . If the lifeguard is Member of the Fire Department , applies the letter "a "
c ) with his previous behavior , created the risk of the occurrence of the outcome . ( Included by Law No. 7209 of 07.11.1984 )
Here BEHAVIOR establishes the DUTY TO ACT
OBS1 . Criminal liability for the occurrence of these assumptions , necessary that the subject has DUTY TO ACT ( stated above ) and CAN ACT .
Inside the conduct we still have the need to be this deck :
1 - voluntary : that is, that has not happened reflex, physical coercion nor irresistible hypnosis , which exclude each typicality ;
2 - conscious : ie , that there is somnambulism ( sleep) , considered EXCLUSIVE typicality .
b - result
It is the practical consequence of the fact
c - nexus - causal
Established link between conduct and result, PENAL CODE adopts TEROA BACKGROUND OF THE EQUIVALENCE ( THEORY sine qua NOM ) : Relationship of causality (Amended by Law No. 7209 of 07.11.1984 ) 13 - The result of which depends on the existence of crime is attributable only to the giver cause. It is because the act or omission without which the result would not have occurred . (Amended by Law No. 7209 of 07.11.1984 )
Has EXCEPTION , which adopts THEORY OF INJURY ADEQUATE : Art 13 - Excess independent cause ( Included by Law No. 7209 of 11.07.1984 )
§ 1 - The supervening cause relatively independent rule when the imputation alone , produced the result , the previous facts , however , impute to those who practiced them . ( Included by Law No. 7209 of 07.11.1984 )
d - typicality or adequacy typical
Subsumption of the fact the norm , " snap " the actual conduct in fact typical ( conduct Abstract )


Second element CRIME : FACT anti-juridical .
• The antijuridicidade is the relationship of opposition between fact and law .
• It is not sufficient for the occurrence of a crime , the fact being typical ( established by law ) .
• It is also necessary to be anti-juridical , or contrary to the criminal law , which violates property
legal interests protected by law .
ANTIJURIDICIDADE
Exclusive OR CAUSES OF ANTIJURIDICIDADE illegality - art. 23 CP
LEGAL
• State of necessity ;
• Self-defense .
• Strict compliance of statutory duty .
• Regular exercise of law . State of necessity
SUPRALEGAIS
• Consent of the Offended
• ADPF n . # 54
OBS1 . Consent of the Offended [ 18 ] :
State of necessity
Article 24 . It is considered in need who practice the fact to save the present danger , not caused by his will , or could otherwise avoid , right or ascribed , whose sacrifice , in the circumstances , it was unreasonable to require .
DETAILS
1 ) Existence of a hazard present ( or imminent ) .
2 ) a threat to their own rights or third party .
3 ) Unenforceability sacrifice the interest threatened .
4 ) A hazard not caused willfully by the agent .
5 ) There is no legal duty to face the danger .
6 ) Knowledge of the fact situation justifying .
CLASSIFICATION OF THE STATE OF NEED
A) on the ownership of protected interest :
Own state of necessity - when the agent saves its own right ;
State need for third - when the agent saves rights of others ;
B ) as the subjective aspect of the agent :
State of real need - where the situation
danger is actually occurring ;
Putative state of necessity - the agent focuses on error - putative discriminating - the hazard is imaginary ;
C ) as the third suffering offense :
Aggressive state of necessity - in which case the agent's conduct reaches right to innocent third party ;
State of necessity defense - in which case the agent reaches right to third party caused or contributed to the hazard .
self-defense
Article 25 . It is understood in self defense who, using the means moderately , repel unjust aggression , actual or imminent, to himself or others .
concept
Legitimate defense is repulse the unjust aggression , actual or imminent , the law itself or others , using moderately means necessary.
DETAILS :
1 ) unjust aggression , actual or imminent.
2 ) Law itself or a third party .
3 ) Use the resources needed ;
4 ) Use of such moderate means.
5 ) Knowledge of the fact situation justifying .
FORMS OF LEGITIMATE DEFENSE :
A) on the ownership of protected interest :
Legitimate self-defense - when the unjust aggression turned against the right of the agent ;
Legitimate defense of third - when the unjust aggression occur against third right ) ;
B ) as the subjective aspect of the agent :
Real self-defense - when the unjust aggression effectively present ;
Putative self-defense - which occurs by mistake - discriminating putative - unjust aggression
imaginary ;
C ) in the reaction of the subject assaulted :
Defensive self-defense - when the agent merely defending themselves from unjust aggression , not
constituting his reaction , typical fact ;
Legitimate offensive defense - when the agent , and defend yourself from unjust aggression , also attack the legal right of a third party , constituting his reaction typical fact .
Legitimate defense subjective. It is one in which the excess occurs for type error excusable . The agent , initially in self-defense , having repelled the unjust aggression , assumes , erroneously , that the offense has not ceased , exceeding on the means necessary . Example widespread doctrine is the agent who , in the face of unjust aggression , knife blow strikes the attacker, who comes to fall . Wishing to escape , the attacker tries to get up , thinking that grinder agent who tries her new perpetrate aggression unleashes new stabs him , killing him . In this case , with the fall of the perpetrator because the first stab, had ceased unjust aggression . The agent , however , on the type of excusable error , assumes that the offender intends to raise up to attack him again , why , acting with excess , kill him with new stabs .
Successive self-defense . Occurs in successive self-defense against excessive disgust . The action of initial defense is legitimate to cease the unjust aggression , setting the excess thereafter . In excess, the agent acts illegally , allowing for the initial aggressor , the victim now exacerbation , push him in self-defense .
Mutual self-defense . It is one that occurs when there is unjust aggression to be repelled , since the initial conduct of the agent is unlawful . It is the hypothesis of self-defense against self-defense , which is not allowed in our legal system .
Are called ofendículas or ofendículos asbarreiras or obstacles for the defense of legal interests . Apparatuses are generally designed to prevent aggression against any legal right , is the use of animals ( wild dogs , for example ) or by using
appliances or man-made artifacts ( barbed wire, broken glass on the wall, fence
Electrified , for example). Portion of the doctrine distinguishes ofendícula defense mechanics predisposed . The ofendículas are perceived by people with ease and do not require acknowledgment of their existence .
Eg broken glass on the wall, spear points on a grid , gap etc. . Already predisposed mechanical defenses are hidden , ignored by the alleged perpetrator , requiring notice of their existence . Eg electrified fence , traps generally concealed weapon , etc. ferocious dog .
Strict compliance with legal obligations
Is strict compliance with the statutory duty when the law in certain cases , requiring the agent behavior . In these cases , under article . 23 , III of the Criminal Code , although typical conduct is not unlawful . Eg executioner executes the death penalty ; soldier who kills the enemy on the battlefield ; force employment ( art. 284 CPP ) . Regular exercise of the exclusive right antijuridicidade This is supported by art . 23 , III , of the Penal Code , which employs the expression direitoem broad sense . The conduct these cases, although typically not be wrongful . Eg desforço immediately in trespass ; retention for improvements; jus corrigendi .
excess punishable
Article 23 . ( ... ) Only paragraph . The agent , in either case this article will answer by too willful or grossly negligent .
TRY : crime is tempted when , started running , the crime is not consummated by circumstances beyond the control of the agent . It is customary to use the term as a synonym of Latin conatus attempt : 14 - It is a crime : (Amended by Law No. 7209 of 07.11.1984 )