Aula ao vivo - Teoria do Domínio do Fato

Summary

The video script delves into the 'Theory of Domain of Fact' in criminal law, initially developed by Hans Veu in 1939. It contrasts with the classical 'Naturalist or Causal Theory' by shifting the focus from intent and guilt to typical fact. Veu's finalism emphasizes the role of will in all actions, suggesting that every action is voluntary and driven by will. The theory also explores the concept of co-authorship in criminal acts, distinguishing between the principal action of the 'author' and the accessory action of the 'participant'. It further discusses the criteria for determining principal conduct and the implications for legal responsibility.

Takeaways

• 📚 The 'Theory of Domain of Fact' was first developed in 1939 by Hans Véu, who opposed the classical 'Naturalist or Causal Theory' by shifting the focus from intent and guilt to the typical fact.
• 🛠 Véu's theory emphasizes that all actions are voluntary and driven by will, which is the fundamental force behind any conduct, and no action can exist without will.
• 🔍 The theory distinguishes between 'dolus' (guilty intent) and 'culpa' (culpable negligence), integrating both into typical conduct, with will being the driving force and purpose guiding the action.
• 📖 The script discusses the development of the 'Theory of Domain of Fact' further by Rangel Souza in 1939 and its deepening by Claus Roxin in 1963, both of whom contributed to the understanding of this theory in criminal law.
• 🤝 The theory addresses the phenomenon of joint perpetration, explaining the concepts of 'authorship' and 'co-authorship' in the context of multiple agents committing the same crime with unity of purpose.
• 🏛 The 'Unitary Theory of Authorship' was mentioned, which considers everyone contributing to a crime as an author, but this theory is not adopted in modern legal systems, including Brazil's.
• 📉 The 'Extensive Theory' also does not differentiate between the author and participant, allowing for reduced sentences if the contribution is less significant, but it too has not been adopted.
• 📘 The 'Restrictive Theory' is the one adopted in Brazil and other countries, which differentiates between the principal conduct of the author and the accessory conduct of the participant, with the author being the one executing the main action.
• 🔑 The 'Objective Formal Criterion' is used to identify the principal conduct, which is described in the legal type of the crime, adhering to the principle of legal reservation.
• 👥 The Brazilian Penal Code adopts the 'Restrictive Theory', where the author is the one who performs the principal conduct, and the participant is the one who performs the accessory conduct, with both being responsible for the same crime according to Article 29.
• 🎯 The 'Theory of Domain of Fact', also known as the 'Objective Subjective Criterion', explains the concept of principal conduct by identifying who has the final control over the actions leading to the result, including the intellectual author and the executors.

Q & A

What is the 'teoria do domínio do fato'?

The 'teoria do domínio do fato' is a legal theory developed by Hans Véu in 1939, which emphasizes the role of will and purpose in actions, moving the focus from guilt to the typical fact. It suggests that every action is driven by will and purpose, and no action can exist without will.

What is the difference between 'teoria naturalista ou causal' and 'teoria finalista'?

The 'teoria naturalista ou causal' focuses on the natural or causal aspects of an action, while the 'teoria finalista', created by Hans Véu, emphasizes the intention and purpose behind the action, stating that will is the driving force behind all actions.

What does the term 'autor' mean in the context of the 'teoria do domínio do fato'?

In the context of the 'teoria do domínio do fato', 'autor' refers to someone who not only performs the main action (verbo do tipo) but also has the decision-making power and control over the entire sequence of actions leading to the final outcome of the crime.

What is the concept of 'coautoria' in the legal context discussed in the script?

'Coautoria' refers to a situation where two or more people unite their wills and purposes to commit the same action, thus being considered as joint authors of the crime. It is part of the discussion on the 'teoria do domínio do fato' and the concept of joint criminal enterprise.

How does the 'teoria unitária' define the concept of 'autor' and 'partícipe'?

The 'teoria unitária' defines everyone involved in a crime as 'autores', regardless of their contribution. It suggests that there is no difference between 'autor' and 'partícipe', and everyone who contributes to the crime in any way is considered an 'autor'.

What is the 'teoria extensiva' and how does it differ from the 'teoria unitária'?

The 'teoria extensiva' also considers everyone involved in a crime as 'autores', but it allows for a reduction in punishment if the 'autor' has a lesser contribution. The main difference from the 'teoria unitária' is the recognition of varying degrees of participation, with some 'autores' being considered 'cúmplices' due to their lesser involvement.

What is the 'teoria restritiva' and how does it differentiate between 'autor' and 'partícipe'?

The 'teoria restritiva' narrows down the definition of 'autor' to only those who perform the main action (conduta principal), while 'partícipes' are those who perform auxiliary actions. It differentiates between the two by the significance of their actions in the crime.

What are the criteria used by the 'teoria restritiva' to define 'conduta principal'?

The 'teoria restritiva' uses criteria such as the formal objective criterion (verbo do tipo), the material objective criterion, and the logical formal criterion to define what constitutes 'conduta principal' and thus identify the 'autor' of the crime.

How does the 'teoria do domínio do fato' address the issue of 'autoria mediata'?

The 'teoria do domínio do fato' addresses 'autoria mediata' by considering the person who controls the actions of another individual (who may lack the capacity to understand their actions) as the 'autor' of the crime. It focuses on the control and decision-making power over the action, rather than the physical execution of the act.

What is the significance of the 'teoria do domínio do fato' in differentiating between 'autor' and 'partícipe' in cases of crime?

The 'teoria do domínio do fato' is significant as it allows for a more nuanced understanding of the roles in a crime. It recognizes that an 'autor' may not necessarily be the one executing the main action but could be someone who has the final control and decision-making power over the crime's outcome.

How does the Brazilian Penal Code approach the concept of 'autor' and 'partícipe' according to the script?

According to the script, the Brazilian Penal Code adopts the 'teoria restritiva', defining 'autor' as the one who performs the main action and 'partícipe' as the one who performs auxiliary actions. It also uses the 'teoria do domínio do fato' to further explain the concept of 'autor' in terms of control and decision-making power over the crime.