Do estado de necessidade no direito penal brasileiro e no direito penal comparado

Abstract

The study of the necessity in the scope of the brazilian criminal law and comparative criminal law matters in the verification of the evolution of its concept in the laws of the ancient world, the Greek and Roman thought in medieval times, and canon law and modern law. It is important, to verify the fundaments and the legal state of necessity in light of the doctrines that seek to define them, to verify today, about the dichotomy that exists in the criminal law regarding the legal status of necessity embodied in the adoption option in each legal system, between the unitary theory or the differentiating theory, need to know whether the necessity, regarded in criminal law, have justification or exculpate characteristics, or both. Important to check, therefore, how the necessity was regarded in brazilian criminal law and its relationship with related institutes, such as self-defense, the major force and coercion, proceeding the analysis not even from the causal and final conduct theories but also from the functionalism, that because the criminal law, nowadays is being based in normative concepts, importing to define who should answer for the conduct and to verify objectively, the adequacy of social behavior. To better understand the limits and requirements of the necessity, must be verified in each case, the contours of the situation of need and the fact needed, institutes that should not be misinterpretated once the first assumption conducts to the fact that the second does not constitute a criminal offense. It is also necessary, that the necessity be verifyed with comparative law, in order to obtain their understanding in a universal character, as well as to establish their systematic classification, able to provide a global conception of the institute.