Defeatability theory and its effects on absolute excuse in property crimes

• Autor(a) principal: Medeiros, Falconi Rodrigues
• Data de Publicação: 2020
• Outros Autores: Soares, Jardel de Freitas, Bezerra Neto, Francisco das Chagas, Caiana, Clarice Ribeiro Alves, Medeiros, Aline Carla de, Silva, Eduardo Pordeus, França Júnior, Reginaldo Pereira, Félix, Maria da Conceição Silva, Wanderley, Helmara Giccelli Formiga Wanderley, Maracajá, Patrício Borges
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Research, Society and Development
• Texto Completo: https://rsdjournal.org/index.php/rsd/article/view/4323
• topic: Constitucionalização do Direito Penal; Ponderação principiológica; Derrotabilidade da escusa absolutoria.; Constitucionalización del derecho penal; Principio de ponderación; Defeatability de la excusa absoluta.; Constitutionalization of Criminal Law; Principle weighting; Defeatability of the absolute excuse.

This study aims to analyze the changes brought about by neoconstitutionalism in legal-constitutional theory, notably the phenomenon of constitutionalization of law and the subjection of branches of legal science to the new constitutional hermeneutic dogma. For this reason, the existence of a Constitutional Criminal Law was defended and, consequently, the need for the interpretation and application of criminal rules to previous constitutional conformity. In this perspective, this article, through exploratory research, of a qualitative nature, deductive method, collection of bibliographic-documental data, proceeded in order to carry out a re-reading of the principle of criminal legality to make it ponderable before the specific case, in which is dysfunctional. However, it also clarified about the functions of fundamental rights as limits to state intervention, the application of the principle of proportionality in the event of collision between constitutional norms and the incidence of the principle of the prohibition of deficient protection in face of criminal legality. Finally, in view of the exposed problem, it was sought, based on constitutional principles, to clarify the need of the State, based on the defense of human rights and respect for social well-being, in the face of the existence of cases of difficult solution in the criminal sphere whose traditional interpretation methods do not achieve a satisfactory result, use the theory of defeatability to overcome the original normative standard, in order to preserve the victim's human dignity and the effectiveness of criminal jurisdiction.