Da participação culposa no Direito Penal Brasileiro

Abstract

This dissertation analyzes the possibility of distinguish forms of participation in crimes which are not characterized by the interpretation of ‘dolo’ (intent or propose). The investigation begins by presenting the reasons given by the Brazilian doctrine to deny the possibility of accessory before the fact in crimes characterized by recklessness. It can be noted that the denial of viability affirmed by majority doctrine is based on concepts that need revision due to the dogmatic evolution of Criminal Science in the last decades. Among the doctrinal anachronistic concepts identified in this work are the theory of ‘tipos penais abertos’ (a theory that argues for actus reus undescribed sufficiently in criminal law) and the requirement of homogeneity of subjective elements (mens rea equaly identified in agents involved in crime) as a way of finding agreement among those involved in the commission of the offense. In the proposed analysis, the adoption of a differentiating system between the agents involved in the offense is presented as a measure more compatible with the principle of legality, since it does not equate all types of conducts that cause damages with the concept of main perpetrator and principal in the second degree. A dogmatice different treatment between principals (in first and second degree) and accessory after the fact is advocated from a quantitative analysis of the risk of action in relation to the object protected by law in the hypotheses where a person has less knowledge of the risk of action. The dogmatic system proposed avoids a legal treatment more severe in reckellessness in relation to the crimes which the mens rea is identified as intent or propose.