Aplicação do Princípio da insignificância à luz do garantismo penal: uma análise nos crimes de furto e roubo.

Abstract

The present work deals with the application of the principle of insignificance in the light of the theory of penal guaranteeism, with special attention to the crimes of stealing and robbing. Notwithstanding, this principle be implicit in the patriotic juridical ordainment, enjoys of considerable acceptance in both doctrine, as in the jurisprudence, being majority recognized as an exclusionary of material typicality, before situations of inexpressive lesion to the legal interest protected by the Penal Right. The principle assumes a relevant role, in the context of the Democratic State of Right, once that it aims for the consecration of the fundamental right of freedom. Front the importance of this vector interpretive, as well as in view of the divergences of understanding relating to its application, this study conducts an approach of its main aspects, with emphasis on exposure of the application criteria; in analysis of the feasibility of consideration of the antecedents and the relapse as impending elements to the application; in the investigation of the juridical possibility of their application, front the crimes of stealing and robbing, all this, for the purpose of obtain a greater juridical security in the important and arduous task of judging in the light of the concrete realization of the vector. With the phyto of achieving these objectives is employed the method of approach, hypothetical-deductive; and the methods of procedure, historical and monographic; lastly applies the techniques of research, direct and indirect documentation. With a better understanding of the theme, one realizes that there are no major obstacles to its use in the crime of stealing, provided that they meet the necessary requirements; already on the crime of robbing, there are jurisprudential positioning executed in the higher courts of the country, by the inability to recognize the vector of insignificance. As to the taking into account of the background and recidivism, there is no unanimity in doctrine, even in jurisprudence, although it must be remembered that the position that is firming The Higher Court by not to apply the principle under discussion, front the recurrence of the agent that demonstrates your inclination to the criminal life. The stance than is expected from an magistrate of the criminal field, front all these issues that have been evoked in the activity of application of principle, is the sensitivity able to loosen mere concepts preconceived, with the detailed analysis of the concrete situation, under the perspective of fundamental rights, which the defense represent the highest aim of the Penal Right.