O conceito de crime de menor potencial ofensivo à luz da Lei n.° 10.259/01

Abstract

On July 12, 2001, Law No. 10,259/01 was published and came into force six months after its publication, with the task of regulating the creation of special courts within the federal justice system. The advent of the aforementioned law was the starting point of a heated doctrinal controversy, since in its article 2, dealing with the concept of a crime of lesser potential harm, it gave it a new definition, considering as such crimes for which the law did not impose a maximum penalty of more than two years, thus contradicting the concept enshrined in article 62 of Law No. 9,099/95, which, in theory, would revoke this last provision, expanding, as an inevitable consequence, the jurisdiction of the state special criminal courts. There is, therefore, a real doctrinal controversy regarding the concept of crimes of lesser potential harm. This occurs, as has been said, due to the possible repeal, by the new law 10.259/01, of law 9.099/95 which established the concept of crimes of lesser potential harm. The questioned repeal, and consequent innovation in the concept, aroused our interest, so we began an exhaustive and methodical research with the main scope of analyzing the aforementioned controversy, proceeding with an interpretation of the concept brought by the new law in light of the Federal Constitution, also carrying out, as could not be otherwise, the necessary comparison between the “two provisions that now regulate the matter”, and seeking to give effect to the conflicting norms, specifying, albeit incipiently, the real scope of the new concept of crime of lesser offensive potential. Finally, in conclusion, our position regarding the controversial topic is recorded, attempting to attribute effectiveness to the new legal norm within our legal system, since it is extremely uninteresting for the desires of a harmonious society, where each individual contributes to social, political and economic development, the existence of an inoperative norm that, instead of bringing the expected solutions, on the contrary, gives rise to new complications.