TEORIA GERAL DO CRIME - Direito Penal

Summary

This video lesson provides an in-depth exploration of the General Theory of Crime, focusing on key concepts frequently tested in OAB and public exams. It covers the different definitions of crime, including legal, material, and analytical perspectives. The lesson delves into the tripartite theory, which defines crime as a typical, illegal, and culpable act, explaining each element with examples. It also discusses the concepts of imputability, awareness of the crime's unlawfulness, and the exigibility of a different conduct. The video concludes with real-life examples to help viewers better understand the application of these legal principles.

Takeaways

• 😀 Crime is defined in three main ways: legal, formal, and material. The legal definition is based on the Penal Code, while the formal definition sees crime as any violation of a penal norm, and the material definition views it as any behavior that harms protected legal goods.
• 😀 The analytic concept of crime focuses on the structural elements of crime, using either a bipartite or tripartite approach to explain it.
• 😀 The bipartite theory suggests that crime consists of two elements: a typical fact and its antijuridicity. Culpability is not part of the crime in this view.
• 😀 The tripartite theory, which is more widely accepted, defines crime as consisting of a typical fact, antijuridicity, and culpability, with culpability being a key element.
• 😀 A typical fact in the context of crime includes: conduct (action), result (change in the external world), causal link (connection between conduct and result), and typicity (whether the conduct is defined as a crime by law).
• 😀 A practical example of a typical fact: if a person named Gary dies due to a traffic altercation where he is hit by another person, it qualifies as a homicide under the Penal Code.
• 😀 Antijuridicity, or the illegality of an action, is crucial for a typical fact to be classified as a crime. However, not all typical acts are crimes if they are legally justified (e.g., in the case of self-defense).
• 😀 Culpability is the final element of the crime and involves evaluating the reproachfulness of the conduct. It consists of three components: imputability (mental capacity), awareness of the unlawfulness of the act, and the requirement for an action that could have been avoided under normal circumstances.
• 😀 A key example of culpability is the case of a 5-year-old child who steals a candy. Since the child is incapable of understanding the wrongfulness of their actions, they are not punishable.
• 😀 Understanding the three theories of crime and their elements is essential for succeeding in the OAB exams and public competition exams, as these concepts are frequently tested.

Q & A

What is the tripartite theory of crime?

The tripartite theory of crime states that a crime is composed of three essential elements: factual typicality (fato típico), antijuridicidade (illegality), and culpability. Each element must be present for an act to be considered a crime.

What is the concept of 'fato típico' in criminal law?

'Fato típico' refers to the human conduct that is classified as a crime under the law. It consists of four components: the conduct (action or omission), the result (the consequence of the conduct), the causal nexus (the link between conduct and result), and typicality (the action being defined as a crime by law).

Can a typical act ever be non-criminal? How?

Yes, a typical act can be non-criminal if the conduct is justified under the law. For example, if someone acts in self-defense, their conduct may be considered typical but not criminal, as the action is legally permissible.

What is the role of 'antijuridicidade' in determining a crime?

'Antijuridicidade' refers to the violation of the legal order. Even if an act is typical, it is not considered a crime unless it is also illegal. If a person’s conduct is justified (e.g., self-defense), it may not be considered criminal, even if it fits the description of a typical act.

What are the key elements of 'culpability' in criminal law?

Culpability involves evaluating whether a person can be held responsible for a crime. It includes three elements: imputability (the capacity to understand the criminality of the act), consciousness of illegality (awareness that the act is illegal), and exigibility of different conduct (whether the person had the ability to act otherwise in a normal situation).

How does 'imputability' affect culpability?

'Imputability' determines whether a person has the mental capacity to understand the criminal nature of their actions. If someone is deemed non-imputable (e.g., due to age or mental incapacity), they cannot be held responsible for a crime, as they lack the capacity to comprehend the act’s illegality.

What is the significance of 'consciência da ilicitude' in the theory of crime?

'Consciência da ilicitude' refers to the individual's awareness that their action is illegal. If a person performs an act without understanding its criminal nature, they may not be held culpable for the crime, as they lack the necessary awareness of wrongdoing.

What is meant by 'exigibilidade de conduta diversa'?

'Exigibilidade de conduta diversa' refers to the requirement that the individual must have been able to act differently in a normal, regular situation. If an extreme or abnormal situation influenced their actions, they may not be held accountable, as they could not reasonably choose a different course of action.

Can a child be held criminally responsible for theft? Why or why not?

No, a child (e.g., a 5-year-old) cannot be held criminally responsible for theft. This is because children are generally considered non-imputable due to their lack of awareness of the criminality of their actions, and they do not have the mental capacity to understand the wrongfulness of their conduct.

How does the tripartite theory of crime apply to the example of Gary in a traffic altercation?

In the example of Gary, who is attacked and dies in a traffic fight, the tripartite theory is applied as follows: the fact is typical because the attack caused a result (Gary's death); it is antijuridic because it violates the legal order; and it is culpable because the individual performing the attack could be held responsible, as the conduct was unlawful and intentional.