Ordens de observação contingentes sobre a conduta da vítima na criminogênese à luz do estrutural-construtivismo

• Autor(a) principal: Fonseca, Ana Clara Montenegro
• Data de Publicação: 2020
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UFPB
• Texto Completo: https://repositorio.ufpb.br/jspui/handle/123456789/21294
• topic: Teoria dos sistemas; Estrutural construtivismo; Redundância e variação; Contingência e dogmática penal; Autorresponsabilidade e consentimento da vítima; Systems theory; Structural-constructivism; Redundancy and variation; Contingency and criminal dogmatics; Self-responsibility of the victim and victim consent; Teoria dei sistemi; Strutturale costruttivismo; Ridondanza e variazione; Contingenza e domagtica penale; Auto-responsabilità della vittima e consenso della vittima; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

The victim's contributory behavior in crime, as a category taken in the light of criminal dogmatics, due to the structure of self-responsibility and / or consent, is studied, generally, based on the reflex of the legal nature of the institute, that is, only limited to saying whether or not to exclude the offense. Distinctly, this approach starts from the problem: how is it possible to observe the role of the victim in modern criminal dogmatics approaching from a systemic and constructivist observation? As a result: what role does this victim's behavior play, from a peripheral perspective to the center in the penal system (legislators, indoctrinators and courts), between the redundancy and variation in Brazilian legal argument? Through the structural-constructivist methodology, who builds what science is, is the observer, who, based on its distinctions, invents its reality as knowledge and as non-knowledge, in the bias of Heinz Von Foerster, George Spencer-Brown, Niklas Luhmann and Raffaele de Giorgi, central theoretical milestones of this thesis. It is an interdisciplinary study, which cuts across the legal point of view, because, involved in complex systemic thinking, it goes through the sociological and philosophical paths, often visiting even literature as a supporting metaphor, to continue on the journey of trying to elucidate descriptions and interpretations of criminal dogmatics. Our hypothesis is to work with the crime victim's role as communication. The victim, a direct observer of the criminal event, provides the legislator / indoctrinator with peripheral formulations about his behavior. In the light of cybernetics, this first order observation works in the construction of the dogmatic frame, anticipating the second order observer, the judge of the concrete case. The latter, through its decisions, builds perspectives seen as central to the penal system, based (in theory) on the available legal programs. That is, the hypothesis of positioning communications about the victim as structural-constructivist observations creates a methodology of framed expansion of the science knowledge on the theory of crime. Because the victim is empowered to build observations about the criminal event, updated by observers of the system, updating thoughts about causality, about imputation, about what traditionally legitimizes criminal law, breaking with this same paradigm. In this bias, it is not a matter of thinking about whether or not the victim can waive the criminal protection of its assets and, with this, favor the non-imputation of criminal liability to third parties. It seeks to examine how the system deals with this structure (the victim's role) within its function. It matters how this role is built on the semantics of the imputation system to continue operating and expanding communication, reducing system noise and giving an impression of legal certainty. Therefore, this thesis is structured in three main axes. The first works on the method and theoretical basis of the thesis: the central points of the theory of systems and constructivism are approached. The second is dedicated to the identification of communicational uses regarding the victim's role, based on the understanding of the memory function and its invented temporality that support the construction of the modern criminal law labyrinth, taking two different ways between the paths of redundancy and argumentative variation . In the third, the levels of observation about the victim's conduct and the limits of the dominant theoretical matrices in modern criminal dogmatics are discussed. The idea is to describe the structural-constructivist observation of dogmatic-penal, related to the behavior of the victim character, beyond the theory of exclusive protection of legal property. All of this, with the intention of expanding the cognitive capacity of observers and promoting the production of conceptual formulations for the complexities generated by contingencies and how fast society changes, based on this legal theory of communication.