Uma análise sobre a (in)compatibilidade da teoria da cegueira deliberada com o sistema jurídico-penal brasileiro

• Autor(a) principal: Andrade, Regina Alves
• Data de Publicação: 2023
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Repositório Institucional da UFS
• Texto Completo: http://ri.ufs.br/jspui/handle/riufs/17626
• topic: Direito; Ensino de direito; Cegueira (internos); Dolo; Responsabilidade penal subjetiva; Common Law; Direito penal; Direito a saúde; Saúde pública; Willful blindness; Dolus; Subjective criminal liability; Common Law; CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO PENAL

The Willful Blindness Doctrine, despite originating from the North American legal system, has been gaining prominence and notoriety in Brazil, serving as a basis for condemnatory decisions, even without a prior adequacy test. This theory, however, presents incompatibilities with the Brazilian criminal legal system, raising questions about its applicability in the decisions of the national courts. This text will therefore seek to analyze the main characteristics of this theory and discuss the feasibility of its application in the Brazilian legal context, addressing the difference between the original forms and the one applied in Brazil. For this, it is essential to understand the system of subjective imputation of Criminal Law in Brazil, in the light of the theory of the crime, paying special attention to the concept and basic premises of the figure of intent, in its eventual modality, in view of the current tendency of normalize it. Then, the origin, meaning and scope of Wilfull Blindness Doctrine in North American criminal law are discussed, as well as its process of incorporation and development in Brazil, pointing out the main judicial decisions that dolus used this theory. Finally, and reaching the central point of this study, the discussion about the compatibility - or not - of this doctrine with Brazilian Criminal Law is presented. Making use of a theoretical research with a hypothetical-deductive approach, combining the bibliographical and documental review and, secondarily, the comparative method, it was possible to conclude that the Wilfull Blindness Doctrine is not compatible with the Brazilian legal-penal system. In addition to being a typical institute of North American law, built from Common Law concepts and criteria that have no equivalence in Brazil, its application by the national courts leads to unfair convictions, with violation of fundamental rights and guarantees.