Elementos de valoração global do fato: análise sobre a posição sistemática e o objeto de cognição do dolo

Abstract

The present study aims to analyze the systematic positioning of the elements of global valuation of the fact, as well as the intellectual content of dolus with respect to those elements. After defining and detailing the categories of the statutory definition of the offense and wrongfulness, the theories of ratio cognoscendi and ratio essendi are addressed in their various forms, identifying their premises and presenting the criticisms directed at them. Subsequently, the study focuses on the elements of global valuation of the fact, examining everything from their concept and theoretical background to the proposals for their systematic positioning, investigating whether these elements constitute a reason for adopting the bipartite concept of crime. Once the systematic positioning of both the divisible and indivisible elements of global valuation of the fact is established, the discussion turns to the theories of dolus, culpability, and the proposals advocating a unitary approach to error, with an emphasis on the theory of limited culpability adopted by the Brazilian legislator. Following this, Frisch’s theory—aimed at determining the content of intentional wrongdoings—is addressed, and its validity is assessed in light of the divisible and indivisible elements of global valuation of the fact. Having delineated the content of intent, the consequences of an error regarding the elements of global valuation of the fact are then presented. Finally, the proposed cases are resolved.