Posição de garantia em direito penal : a problemática da equiparação na omissão imprópria

• Autor(a) principal: Martins-Costa, Antônio Goya de Almeida
• Data de Publicação: 2016
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_RS
• Texto Completo: http://tede2.pucrs.br/tede2/handle/tede/7282
• topic: Direito Penal; Teoria Geral do Delito; Crimes Omissivos; Omissão Imprópria; Posição de Garantia; CIENCIAS SOCIAIS APLICADAS::DIREITO

This dissertation aim to study a set of problems that derived from the equiparation of the omission to the action in improper omissive crimes (Gleichstellungsproblematik) in contemporary criminal law, all that from the theory of the position of guarantee (Theorie der Garantenstellung). In other words, this research intends to investigate the merits and demerits of some of the most important theories found in contemporary literature commonly used to explain the aforementioned phenomenon. The methodology select by us to solve the questions raised was the bibliographical review of several studies presented in order to elucidate the problem at hand. The dissertation is divided into five chapters. The first one seeks to demonstrates how this problem was posed by the criminal dogmatics and, consequently, aim to discusses the reasons why a set of notorious proposals defend that the two forms of conduct (omission of the impediment of a result and its production by an action) must receive the same treatment under criminal law. The next three chapters analyze three different theories built around the problem we seek to investigate (material-formal theories, Jakobs theory and Schünemann's theory). In each chapter, after characterizing the aforementioned theories, we intend to list the objections commonly made by de doctrine to them and, afterwards, present a set of critical observations. The fifth chapter summarizes the main points discussed in the course of this investigation, concluding that the Schünemann's approach is the theoretical perspective that - if nuanced with a formal-material theory - offers us a more plausible and coherent solution for the problems posed by the theory of the position of guarantee. This positioning surely reduces the scope of guarantee of supervision and control of sources of danger only to obligations of insurance in legal traffic (Verkehrssicherungspflichten), denying rescue duties (Rettungspflichten) in the position of guarantee by interference. One of the main conclusions of the research is that the starting point for the solution of the “problem of equalization” must be an argument based on the idea of similarity. That similarity must be found in the analytical structure that justifies the imputation of the result to both the commission and the omission conducts.