A responsabilidade penal do adotante ilegal

• Autor(a) principal: Silva, Fernanda Oliveira
• Data de Publicação: 2023
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/39364
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Interesses das crianças e dos adolescentes; Família; Adoção; Crimes ligados à adoção; Adoção à brasileira; Tráfico de crianças e adolescentes para fins de adoção; Adotante ilegal; Sanção penal; Funções da pena; Responsabilização penal; Interests of children and adolescents; Family; Adoption; Crimes related to adoption; Brazilian adoption; Trafficking of children and adolescents for adoption; Illegal adopter; Punitive sanction; Role of punishment; Criminal liability

This dissertation analyzes the need to criminalize the behaviors that make up modalities of illegal adoption of children and adolescents and the criminal liability of the illegal adopter. Legal adoption rules may be bent in view of direct dealings between the biological parents (or legal guardians) of children and adolescents and adoption applicants. This results in the socalled “Brazilian-style adoption” provided for in art. 242 of the Criminal Code, or even in the trafficking of children and adolescents for inclusion in a substitute family, crimes provided for in arts. 238, sole paragraph, of Brazil's Child and Adolescent Rights Act (ECA) and 149-A of the Criminal Code. Crimes resulting from illegal adoption are hard to be clarified since they have a certain degree of social acceptance (“Brazilian adoption” – art. 242 of Criminal Code (CC)/1940) since they are practiced by means of a criminal organization (child trafficking provided for in art. 149-A of the CC) or, also, by agreements between the biological parentes or legal guardians and alleged adoptive parents (ECA’s arts. 238, sole paragraph). In addition, the prosecution and possible punishment have the ability to affect people other than the criminal. Typically, according to jurisprudential research, this is because such wrongdoing is known to public authorities after a relevant period of time of family life involving the child or adolescent and the agents who perpetrated the wrongful act and after affective ties are formed and consolidated between them. Thus, noting the factual developments and the impact caused by the criminal prosecution to the interests of children and adolescents, noticeably the right to family life and its stability, it is imperative to question what the purpose to prescribe punishment on the offender in the hypotheses aforementioned would be. To this end, the research was predominantly based on qualitative and explanatory approach, on bibliographical, documentary, and jurisprudential research, with a multidisciplinary perspective. The subject in question asks for the joint analysis of issues related to various branches of law, among which, human and childhood and adolescent rights as well as constitutional, civil, and criminal law. The objective is to establish the political-criminal basis for predicting crimes and punishments. The study examines the evolution of the rights of children and adolescents and of the doctrines of the family and adoption related to the said offenses as well as the purpose of the punishment (provision and application to the illegal adopter). The conclusion is that the provision of offense and punishment is due. However, the supra-constitutional determination of protection of the best interests of the child and adolescent must be observed by the legal players in order to avoid harm to the formation of the personality that would come as a consequence of the family being constituted illegally. In 6 chapters, including Introduction and Conclusion, the dissertation was developed based on a qualitative scientific research (whose collected data provide details and in-depth knowledge for a better understanding of the revealed implications), of an exploratory nature (it focuses on the subjective aspect of the object and in the study of its particularities) and guided by the analytical-descriptive narrative