RIBEIRO, J. S.; http://lattes.cnpq.br/2706302958212766; RIBEIRO, Jefferson de Sousa.
Résumé:
The present work aims at the concern about how a significant portion of the Brazilian
legal and legislative power infra treated and have built the Criminal Law, due to the
influences of the period of military dictatorship, only from the perspective of
subprinciple Prohibition of Overeating, which is the defense of the individual against
state action, through the imposition of negative collateral as a means of providing
security for individual rights. Using methods of historical- legal and legal - exegetical
and, as the research technique of indirect documentation, through the literature, it
was shown that such a course, proscribes the second face of the Principle of
Proportionality, namely, subprinciple Ban protection Disability imposing a duty to
protect the State in favor of the individual against violations of their legal rights by
third parties. The Brazilian state, a democratic state scenario (and Social) of law, it
appears rather as promoter and guarantor of fundamental rights than as a threat or
alleged rapist, so the 1988 Constitution and the constitutional legislation should be
interpreted in criminal matters, according to a balancing test, in order to understand
the principle of proportionality in all its fullness, especially if one considers certain
issues involving criminal law in Brazil today, as the rise in crime, the advance rates of
impunity and the strong feeling of insecurity that subjugates the population.
Accordingly, the Criminal Law was exposed as an important tool for the promotion
and guarantee of fundamental rights and not as suppressor function takes as an
instrument of social transformation aiming to ensure a harmonious society, peaceful
and orderly, in which citizens have protection all their fundamental rights and not just
the portion of them .
