A necessária observância do Direito Penal á luz do equilíbrio entre os subprincípios da proibição da proteção deficiente e da proibição de excessos.

Abstract

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 .