Teoria da derrotabilidade e seus efeitos sobre a escusa absolutória nos crimes patrimoniais: uma leitura neoconstitucionalista do Direito Penal.

Abstract

This paper discusses issues related to the changes operated by neo- constitutionalism in legal and constitutional theory, notably, the phenomenon of law constitutionalization and the subjection of the branches of legal science to the new dogmatic constitutional hermeneutics. Because of this, the existence of a Constitutional Criminal Law has been defended and, consequently, the necessity of interpretation and application of the criminal laws to the prior constitutional conformity. In this line of reasoning, with the purpose of promoting the rereading of the principle of criminal legality in order to make it ponderable before the concrete case in which there is a dysfunctionality, the functions of fundamental rights such as the limits to state intervention, the application of the principle of proportionality in the hypothesis of collision between constitutional laws and the incidence of the principle of prohibition of the defective protection before criminal legality. Furthermore, in the face of the existence of cases that are difficult to solve in the criminal sphere whose methods of traditional interpretation cannot achieve a satisfactory result in the light of the Brazilian Federal Constitution, such as what happens with the regulatory vacuum of protection in the regulation of the absolutory excuse as provided in article 181, item I, of the Criminal Code, the theory of defeasibility was used to overcome the original normative standard in order to preserve the victim’s human dignity and the effectiveness of the criminal jurisdiction. This study was carried out based on the research technique of indirect documentation as it predominantly covers bibliographical and documental research. Besides the legal and formal basis corresponding to the Federal Constitution of 1988 and the Criminal Code, concrete cases judged by the Federal Supreme Court where used. In these cases, the notion of normative defeasibility was applied, although this is not expressly mentioned.