Evitabilidade do erro de proibição

Abstract

The main objective of this work is to analyze the hypotheses of characterization of the prohibition error and the set of applicable criteria to assess its avoidability. Therefore, the analysis starts from the debate on the content of culpability, which is defined as the lack of prudence related to the penalty or the irresponsibility to the punishment. Subsequently, the characterization of the prohibition error is investigated, addressing elements such as the nature and relevance of the prohibition error in the theory of crime, the awareness of illegality, the treatment of hypothetical errors as a prohibition error, among other elements of interest to the theme. Regarding avoidability, the main criteria used by the doctrine to carry out this analysis were analyzed, namely, the duty of information, the possibility of knowing and the insufficiency of the diligences. One of the main conclusions of the work is that there must be an analytical ordering of the criteria already developed so that the avoidability of the error of prohibition can be measured, which is divided into three stages: duty to inform about illegality; possibility of knowing the illegality and insufficiency of the steps taken to seek information. Thus, an analytical and sequential structure was presented, and it can be applied to verify avoidability and solve concrete or hypothetical cases.