Os institutos despenalizadores da Lei 9.099/95 e o principio do favor rei ou favor libertatis: uma análise á luz da teoria dos jogos.

Abstract

The law 9.099/95, known as the Law of Special Courts, emerged as a breath of fresh air for the judiciary packed with cases, as a mechanism to give speed and economy to procedural demands considered small. Its institutes considered to be decriminalizers came as tools to unburden the Judiciary. An analysis is needed to determine whether or not such institutes, although aimed at speed, are beneficial to the defendant, enabling him to achieve the maximum principle of Criminal Procedure, the principle of Favor­King, and this analysis is made from the point of view of game theory, a theory that gains space in the procedural milieu by seeing each party in the demand as a player in a strategic game. This study will explain the functions of Law 9.099/95, the Law of Special Courts, its historical conjecture and its institutes considered decriminalizing. It will be conceptualized what would be the theory of the games, its players, their strategies and movements. The principle of King's Favor or Libertatis Favor will be highlighted as well as its implications seen from the point of view of game theory. This study will use the deductive method to understand the possibility of achieving the King's Favour principle by the institutes of Law 9.099/95. The technique of indirect documentation will also be used through exploratory bibliographic research with analysis of books, legislation and scientific articles published with qualitative approach on the subject. This way, it is clear from the research carried out, without exhausting the questions on the subject, that, through analysis by the theory of the games, it is possible that the civil composition of damages, the criminal transaction and the conditional suspension of the process can promote the constitutional principle of Favor Rei or Favor Libertatis, provided that the litigant parties, especially the player considered to be a defense, examine the institutes as a play, i.e., a procedural movement that best fits its objectives and strategies, making the defendant's interest prevail over the State's interest in punishment, even if it does not consider, in the decision making, the speed and procedural economy as primary objectives of the law 9. 099/95 that regulates special courts, but without giving up the strategic collaboration generated among the procedural players and in line with what advocates restorative justice and the due legal process.