A consciência da ilicitude no ordenamento jurídico-penal brasileiro

• Autor(a) principal: Castilho, Bruno Medinilla de
• 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/40763
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Conhecimento; Ilícito; Responsabilidade penal; Culpabilidade; Erro de proibição; Knowledge; Illicit; Criminal liability; Culpability; Error of prohibition

The Brazilian legal-penal system is marked, through multiple normative diplomas, by a series of conducts typified as criminal offenses, requiring from the common Brazilian a knowledge of what is illegal, at the penal level, which, not rarely, proves to be questionable in practice. In light of this, the main objective of this study was to analyze the adequacy of the current perception of the awareness of illegality in the construction of the Brazilian reality. Using the deductive approach and methodological procedures based on bibliographical research through books, theses, dissertations, and scientific articles, we initially sought to define the constitutional penal principle of guilt and its reach in relation to the elements of the crime. Subsequently, we thought about guilt as an element of the crime, based on the three main theories of action, and then investigated the most relevant aspects involving the error of prohibition from the point of view of the finalist theory, with emphasis on the distinctions between this institute and the mitigating factor of ignorance of the law. Finally, reaching the core of the present research, the Brazilian reality in terms of criminal legislation was studied, verifying, from the analysis of various laws, in a scenario of legislative hypertrophy and idealization of the error of prohibition, the insufficiency of the potential awareness of illegality to evaluate the guilt of the agent, being necessary, in the context that is drawn, the differentiation between the illicit in general and the criminal illicit, in the light of modern theory, and the expansion of the debate about the ontological perspective of freedom. By means of the jurisprudential research of the bandeirante court, federal court of the third region and the higher courts, carried out with the purpose of contrasting what was theoretically concluded, it could be attested that the theme in question is little explored, evidencing the agglutination of distinct concepts and the attribution of a penal responsibility that, in fact, despises culpability, in the sense of the agent's knowledge of the illicit act