A posse nos crimes de furto: consumação e impossibilidade de tentativa em face do entendimento do STF.

Abstract

This essay analyses and discusses about the possession of theft crimes, specifically the crime tutored in the chapeau of Article 155 of the Brazilian Penal Code for the purpose of characterization of the consummation and attempt at understanding of the Brazilian Supreme Court. It is noteworthy that with the trial of SP-REsp102.490 the Brazilian Supreme Court began to adopt the position that understands that the crime of theft is consummated with the reversal of possession and removal of the property of the availability sphere even though the agent did not come to have a calm and peaceful possession of the thing The aim is thus to analyze the concept of possession on the Crime of Theft based on the Civil Code, in addition to a study on the concept of crime and the phases of iter criminis for the purpose of effecting and in what time can be considered an attempt of theft. So, we make an approach to the calm and peaceful possession for purposes of the criminal law to end a comparative analysis between the understandings of the BSC and SCJ be performed, as well as other Judicial Courts of Brazil in relation to the concept of calm and peaceful possession. To get to this result, a regulated deductive approach was used, building the scientific thesis from the legal provisions and jurisprudence, using surveys conducted in the bibliography, the technique of indirect documentation on the subject held in crimes of theft, forward to understanding the BSC for the purpose of effecting and try. We use also specific methodology methods, such as historical monograph for the scope of the topic. Thus, it provides a check on the specific crimes of theft in office, dazzling on the impossibility of trying by BSC understanding and nonconsummation of the theft when the agent does not hold the thing even for brief delay or in a gentle and peaceful manner.