Da distinção entre ação e omissão no direito penal: um estudo sobre a tipicidade dos comportamentos ambivalentes

Abstract

The fundamental question this work aims to answer is how to distinguish the nature of conduct (whether it can be subsumed under a commission or omission crime) in cases of ambivalent behaviors. To tackle this issue, the work develops from the necessary definition of concepts and exposition of premises; starting with the concept of action, so extensively studied throughout the development of penal systems but recently losing prominence in the literature; moving through the concept of omission; to the concept of ambivalent behavior, which lacks a precise definition in both national and international literature. From there, the work is dedicated to addressing groups of cases commonly treated as problematic by doctrine (cases of typical negligent conduct, omissio libera in causa, interruption of life-saving causal courses, and interruption of technical medical treatments), as well as the criteria used for their solution, until it is finally possible to construct a legal-penal notion of ambivalent behavior. In the end, a proposed solution is presented that seeks to determine whether all cases treated under this heading deserve the same treatment.