O Dever Legal De Agir
Finally, criminal law regulates the duty to act that there are those who create the risk for a certain legal interest with their previous conduct (act or omission) in order to prevent the result from becoming an offence. (QUIRINO, 2012, P. 267) This is the act performed in accordance with a legal, criminal or non-criminal obligation, even if it prejudices the legal interest of a third party. Different points of the national order show the existence of tasks assigned to certain agents who can configure typical facts in Sissem. For arrest, for example, art. 292 of the Code of Criminal Procedure: “If there is also resistance on the part of third parties to arrest in flagrante delicto or to arrest established by a competent authority, the executor and the persons assisting him may use the necessary means to defend himself or overcome the resistance …” The same is the same as prediction in art. 245, §§ 2 and 3 of the above-mentioned Code, which deal with lawful search and authorize the use of force to comply with the court order. Luiz Regis do Prado, shows that omission itself is completed by the simple violation of the order or order of action, whatever the result. The simple duty to act is outdated. (PRADO, 2008, p. 280) Nevertheless, it is an ordinary offence and a mere activity, as it does not require a result as part of the nature of the unjust.
It is composed directly because the legal model itself implicitly controls the action. (PRADO, 2008, p. 280) Shooting of firearms – Military police officer off duty – No duty under the law – Strict compliance with a non-existent legal obligation Instead, ¹Zaffarroni (2002, p. 2002). 571) shows that peremptory norms must be interpreted prohibitively, but not vice versa, so that the obligation to provide assistance must be understood as follows: It is forbidden to cease to provide assistance, but the prohibition to kill cannot be interpreted as “you must cease to live”1. Thus, the distinction between act and omission is not part of the content of the provision: prohibitive or overbearing. (LEITE, 2011, p. 38) It turns out that the complexity of this distinction is very great.
Some of these situations – and others that also represent compliance with legal obligations – can be moved into the realm of typicity. For example: the doctor is obliged to notify the health authority of the obligation to report, under penalty of not doing so, in order to configure the offence provided for in article 269 of the Criminal Code. Therefore, when you make the communication, it is indeed atypical, since you do not have to use the exclusion of illegality from strict compliance with the legal obligation. It is composed directly because the legal model itself implicitly controls the action, regardless of the outcome. It is then punishable by failure to perform an action that the perpetrator could perform in the concrete situation in which he found himself. In other words, radiate “in violation of a peremptory norm and the mere omission of an activity prescribed by law”. Among its requirements it is worth mentioning: typical situation; failure to perform an action to fulfill the mandate; the concrete capacity to act, which in turn presupposes knowledge of the typical situation and of the means, forms or forms of behaviour. (PRADO, 2008, p. 280). To consider a legal obligation, it is necessary to come from the law, that is to say from a command of a general nature emanating from a competent public authority, although in a broader sense (simple laws, regulations, decrees, etc.). Especially in the Brazilian legal and penal system, there are two legal hypotheses that must be analyzed with the guarantee due to interference. It`s about art.
121(4) and 129(7), both of the Criminal Code (QUIRINO 2012, p. 1). 271), because the previous wrongful act, which violates personal legal interest (life and physical integrity), does not make the agent the guarantor (BITENCOURT, 2004, p. 205), which determines: What matters is the social significance of human behaviour from the point of view of society (notion of value of action). It is understood that action has social relevance if it “influences the relationship of the individual to his environment and constitutes an element of value judgment according to its intended or undesirable consequences in the social field”. It is a normative (and valuative) concept of action that “sees in the social relevance of human action or omission the conceptual criterion common to all forms of behavior. It encompasses action as a sensitive factor of social reality with all its personal, final, causal and normative aspects. (PRADO, 2008, p.
262) There are duties engendered by law and others arising from special legal relations, such as those arising from marriage, those between soldiers and superiors, paternal and communal relations between society are close and agreed upon by society, which serve as the basis for an obligation of guarantee, but which have a moral or ethical character of duty. without capacity for social disapproval. In order to claim the creation of a legal position of the guarantor, it is necessary that a narrow social order, such as marriage and cohabitation, which depends on the axiological character, has previously undergone the evaluation of the ontological content in relation to the merit of the penalty. (LEITE, 2011, p. 2011. 81) This bibliographical production focuses on the delimitation of the duty of power of the agent responsible for the protected legal interest, in this case called guarantor, in the event of inadmissible acts of omission. In other words, what would be the limits or where the guarantor has the duty to avoid an outcome. What are the cases in which the omission may be assimilated to an act or where, as the case may be, it is considered a criminal offence in the form of deception or guilt? 1) Traditional or classical criterion – the distinction between these omitted species is based on taking into account the result that may or may not integrate the legal type. In its own omitted crime – close to the crime of mere activity – the result does not play in its typical structure, already in the inappropriate omitted crime – close to the crime of the result – the event integrates the criminal type; 2) Normological criterion – the difference between them is based on the type of penal norm itself that is outdated. The omission itself violates a mandatory rule, in the case of an inadmissible omission against a prohibitive rule. It is considered false, because in any omitted modality, a mandatory or mandatory norm is violated; 3) Typological criterion – the distinguishing point lies in the legal provision or not in an omitted form. The omisso itself is legally characterized, while the inappropriate is not, since it is a doctrinal or jurisprudential creation.
This is in addition to the position of the guarantor, characteristic of the latter. This criterion was developed by Armin Kaufmann in a 1959 book (Dogmatik der Unterlassungsverbrechen). In general, when it comes to evaluating matter, it is guardian to combine traditional and usurping theories (first and third). (PRADO, 2008, p. 280). The real source of the duties and position of the guarantee lies in something much deeper, namely in the autonomous assessment of material illegality, which is complete down to the formal type, by which commission by omission is equated with action in the concrete situation, by the force of the demands of human solidarity towards other persons within society. (DIAS, 2004, pp. 702 ff.). The devaluation of the result (in the case above) is naturalism! This would prevent him from thinking if his behavior was not as reprehensible as that of the mother who kills her own son. But it is a basis of morality, as opposed to what comes from the Constitution and, in a particular way, from the Penal Code itself.
See: For these, the basis available to the family (secondary basis) must be legal (primary basis of assessment), which is why it should be sought – to obey legality in its spectrum of guarantee and liability to tax in law.