Análise econômica da expansão do direito penal

Aborda a evolução histórica das liberdades individuais, a partir de apontamentos pertinentes ao constitucionalismo liberal, à formação do Estado de Direito e ao advento dos regimes democráticos amparados em direitos fundamentais. Pretende, quanto aos direitos fundamentais, mostrar diversas classificações, funções, critérios e conceitos, além da sistematização de gerações ou dimensões de direitos. Discorre acerca da teoria dos limites aos limites, ao lado de teorias correlatas em profícua confrontação doutrinária, tudo com fins a estruturar os conceitos basilares de direitos de liberdade, que orientam o restante da obra. Trata do cenário histórico-jurídico do surgimento da Análise Econômica do Direito (AED), consistente, sobretudo, no jusrealismo norte-americano, abordado, em paralelo, com o realismo jurídico escandinavo. Aplica conceitos e premissas de microeconomia ao Direito Penal, com ênfase para a investigação do comportamento criminoso empreendida pela Economia do Crime. Avança não apenas restrito à perspectiva teórica, trazendo dados empíricos e implicações concretas da teoria econômica dos delitos e das penas, que serão reconhecidos na evolução e redução da criminalidade, nas políticas de desarmamento, na estruturação empresarial do narcotráfico, bem como na otimização da administração penitenciária brasileira a fim de concretizar o preconizado pela legislação de execução penal. Desenvolve estudo a partir da leitura histórica do Direito Penal, passando pelos conceitos de sociedade complexa e de riscos. Analisa, após fixados tais pressupostos, algumas causas do processo de expansão do Direito Penal com vistas a identificar propostas alternativas ao hiperpunitivismo hodierno, preservando-se, assim, os direitos de liberdade que sustentam o Estado Democrático de Direito. Propõe uma desconstrução do conceito jurídico do princípio da eficiência administrativa, demonstrando como seu conteúdo normativo foi demasiadamente mitigado pela recepção precária dos respectivos elementos econômicos por parte da doutrina e da jurisprudência pátria. Ressalta a importância jurídica da eficiência econômica, devidamente harmonizada com os demais princípios constitucionais, por força do instrumental analítico da AED Positiva. Investiga criticamente algumas teorias sociológicas tendentes ao funcionalismo penal, sob referenciais de eficiência e de direitos de liberdade. Almeja, ao final, propor a AED como alternativa à expansão funcionalista e irracional dos tipos e sanções criminais, de modo que a aproximação entre Economia do Crime, eficiência econômica e Direito Penal contribua para blindar os direitos de liberdade das vicissitudes típicas da sociedade contemporânea

A alteração do tipo penal de adulteração de combustíveis: reflexo da constitucionalização do direito penal no mercado de combustíveis

The neoconstitutionalism led to a process of ethical revaluation of the normative systems and the process of constitutionalization of the many fields of law. This study examines the consequences of this process in criminal law, so important a Law field for the protection of the most valuable assets by the society, including the fundamental guarantees, thus emphasizing the necessity of protection of the collective and individual rights, which are guided by the observance of the defendants individual rights in the course of criminal proceedings and the search for the best efficiency of penal protection, according to the corollaries of defense against the state (prohibition of the excess or Übermassverbot) and the provision of rights by the state (prohibition of insufficient protection or Untermassverbot). The offense of fuel adulteration is taken as an object of study, since it is a vital market to a nation dependent of people and good s movement for their living, driven by fossil and biofuels. Such a crime affects essential legal interests to the development of society, interests such as the environment, consumer relations and economic order, particularly the principle of free competition. This paper seeks to analyze the need of a greater efficiency of this particular criminal protection, once concluded the conduct harm and social fear as a consequence by it as growing, and therefore having its former crime type, engraved in Article 1 of Law No. 8.176/1991, rewritten in compliance with the criminal law s principle of legality. Thus, the reformation proposals and legislative creation involving this crime were observed, with emphasis on the bill No. 2498/2003, which keeps it as blank heterogeneous criminal norm, kind of penal normative whose constitutionality is raised, including the forethought of criminal responsibility in the perpetrating of the offense as culpable and subsequently increasing the applicable minimum penalty, as well as the inclusion of new activities in the typical nucleus

O direito penal do inimigo na atualidade: Mutual Legal Assistance Treaty – MLAT, em matéria penal, celebrado entre a República Federativa do Brasil e os Estados Unidos da América bem como seus reflexos na jurisdição brasileira

In view of the climate of instability and deep social inequalities, it has been evident in the Brazilian reality, a new way to punish systematic already developed and consolidated in other countries, in which, among other things, the criminality is anticipated only by danger that the individual sports. It appears, therefore, that the theory developed by Günter Jakobs, nominated Criminal Law of the Enemy, became subtly inserted in the Brazilian reality as well as in international relations signed. In this sense, the Brazilian State, in order to carry out the international legal cooperation in the criminal field, signed a mutual assistance agreement with the government of the United States of America. Forward the conclusion of Mutual legal Assistance Treaty (MLAT), the signatory countries voiced a desire to cooperate in order to facilitate the implementation of tasks of the authorities responsible for law enforcement in both countries, comprising research, investigation, prosecution and prevention of crime, said internalized adjustment in the Brazilian legal system by means of Decree No. 3810 of 02 May 2001. Alongside these considerations, the present study aims to analyze the Criminal law of the Enemy today, seeking to find evidence of that theory in the MLAT, international legal cooperation instrument signed between the government of the Federative Republic of Brazil and the government of the United States of America. Moreover, it has the objective to describe its effects on the Brazilian jurisdiction, especially as concerns the relativity and the suppression of human rights. Once done the introit, analysis will be carried out in the first chapter, on the definition and main features of the theory of Criminal Enemy of the law, it is imperative to approach the humanistic aspect that preceded the theory as well as the dealings given to some controversial issues surrounding it, such as the anticipation of the enemy's punishment and the disproportionality of the penalties imposed. In the second chapter will present the conceptual assumptions, historical evolution and the positives aspects, as well as the barriers and the pursuit of effectiveness of international legal cooperation. In the chapter, bedroom effective analysis of specific modality of cooperation will be held, the Mutual legal Assistance Treaty - MLAT in criminal matters, signed between the Federative Republic of Brazil and the United States of America, in which the general aspects will be addressed and the MLAT reflections on the Brazilian jurisdiction, which includes analysis about the relativity or suppression of human rights, future trends and creating stricter laws, followed by the presentation of the seized conclusion on the subject, in which, among other approaches, will be voiced understanding about the unconstitutionality certain service requests that, from these, there is the bad use of the agreed instrument.

O direito fundamental contra a autoincriminação: a análise a partir de uma teoria do Processo Penal Constitucional

The right against self-incrimination is a fundamental right that works in the criminal prosecution, and therefore deserves a study supported by the general theory of criminal procedure. The right has a vague origin, and despite the various historical accounts only arises when there is a criminal procedure structured that aims to limit the State´s duty-power to punish. The only system of criminal procedure experienced that reconciles with seal self-incrimination is the accusatory model. The inquisitorial model is based on the construction of a truth and obtaining the confession at any cost, and is therefore incompatible with the right in study. The consecration of the right arises with the importance that fundamental rights have come to occupy in the Democratic Constitutional States. In the Brazilian experience before 1988 was only possible to recognize that self-incrimination represented a procedural burden for accused persons. Despite thorough debate in the Constituent Assembly, the right remains consecrated in a textual formula that´s closer to the implementation made by the Supreme Court of the United States, known as "Miranda warnings", than the text of the Fifth Amendment to the U.S. Constitution that established originally the right against self-incrimination with a constitutional status. However, the imprecise text does not prevent the consecration of the principle as a fundamental right in Brazilian law. The right against self-incrimination is a right that should be observed in the Criminal Procedure and relates to several of his canons, such as the the presumption of not guilty, the accusatory model, the distribution of the burden of proof, and especially the right of defense. Because it a fundamental right, the prohibition of self-incrimination deserves a proper study to her constitutional nature. For the definition of protected persons is important to build a material concept of accused, which is different of the formal concept over who is denounced on the prosecution. In the objective area of protection, there are two objects of protection of the norm: the instinct of self-preservation of the subject and the ability to self-determination. Configuring essentially a evidence rule in criminal procedure, the analysis of the case should be based on standards set previously to indicate respect for the right. These standard include the right to information of the accused, the right to counsel and respect the voluntary participation. The study of violations cases, concentrated on the element of voluntariness, starting from the definition of what is or is not a coercion violative of self-determination. The right faces new challenges that deserve attention, especially the fight against terrorism and organized crime that force the development of tools, resources and technologies about proves, methods increasingly invasive and hidden, and allow the use of information not only for criminal prosecution, but also for the establishment of an intelligence strategy in the development of national and public security

Efetivação da garantia de defesa no estado constitucional de direito: colisão entre o poder punitivo e garantia de defesa

The domination of the violence for the Rule of law awakened a tension between the practice of the punitive power and the right to counsel. However, throughout the recent history of the Criminal law, this shock of forces has been determined for the punitive power. In this perspective, the present work intends to submit the guarantee of defense to a critical judgment, in search to conciliate its content to the Constitutional State of Right. For in such a way, it will be necessary to recognize the disequilibrium of the situation, but without considering the superiority of any of these elements. The State in such a way must fulfill the function to punish the culprits as to acquit the innocents. Despite the law is far from obtaining a harmonious speech, it is necessary that the defense guarantee coexists the punitive power as part of an only public interest, which is, to make criminal justice. In such a way, the existence of a sustainable balance between the punitive power and the guarantee of defense depend on the minimum interference of Criminal law and, also, of the judicial position in the concrete case. The present work faces, therefore, the moment of crisis of the Criminal law, consolidated with the advent of a new way of thinking according to the procedural guarantees, that will demand the overcoming of the old concepts. The Constitutional State of Right not only constitutes an efectiveness of the regime of the right to counsel, but in a similar way it searchs to accomplish the right of action and criminal justice as a whole. Knowing that the philosophy of the language raises doubts on the certainty, the truth and the judgement, it is imposed to understand that the defense guarantee is no more about a simple idea, but, in the crooked ways of the communication, we intend to find what the judge s function is when he faces this new reality

Licenciamento ambiental em postos de revenda de combustíveis à luz dos princípios constitucionais de defesas do meio ambiente: o caso do município de Natal/RN

This study approaches the question of the administrative procedure of the environmental licensing of ranks of fuel resale, taking as basis a study case of the reality of the City of Natal/RN (Brazil). For in such a way, it was done a retrospect on the evolution of the system of road transport in Brazil, having started to briefly analyze the urbanization process that if after accented in the capitals of the Brazilian States the decade of 1950, relating these subjects with the growth of the sector of fuel resale. After that, it was transferred boarding of the defense of the national environment to the light of ambient principles constitutional. In the sequence, a boarding on the ambient guardianship in the Federal Constitution of 1988 was made, treating basically specifies and on the national urban politics and the national politics of the environment, with its instruments. In the sequence, it was transferred the analysis of the abilities and attributions of the National Advice of the Environment (CONAMA) and its Resolutions, for then only enter in the most important part of this work: an analysis of the environmental licensing of ranks of fuel resale, in the reality of the City of Natal/RN. Before this specific boarding, it was proceeded specifically a survey and communication from the applicable norms to such establishments (Resolutions of the CONAMA and norms of the ABNT), for after that carrying through an geo-ambient characterization of the City of Natal/RN. Finally, a reflection was made on the possibility of magnifying of the state activity, in terms of guarantees for the responsible members for the environmental policy and of administrative efficiency, through the idea of the ambient regulation. For the accomplishment of this study, it was proceeded research in diverse sources such as books, magazines, sites of the Internet, periodicals, thesis and dissertations, among others material, beyond visits the agencies that direct or indirectly act with the ambient defense and as fuel resale, such as Secretariat of Environment and Urbanism of the City of Natal (SEMURB), Institute of Economic Development and Environment of RN (IDEMA), Brazilian Institute of the Environment and the Natural resources You renewed, Executive Management of RN (IBAMA/RN), Public prosecutor's office of the Environment of Natal (Public prosecution service of the RN), National Agency of Oil (ANP) and Union of the Retailing of Derivatives of Oil of the RN, among others. To the end, satiated regulation is observed that although on the substance of the ambient licensing in ranks of fuel resale, also with federal, state and municipal norms, the municipal Public Power is very far from the fulfilment of its institutional functions, in the question environmental policy of these establishments, a time that few are the permitted ranks of resale in the city of Natal/RN

A eficácia, no ordenamento jurídico brasileiro, da responsabilização penal da pessoa jurídica pela prática de crimes ambientais

The environment, which fundamental importance has already been recognized in all the world, is an actual national and international discussion subject, whose interest grows for the society, and consequently to the Law, in order to prevent the natural resources to the present and future generations. The 1988 Brazilian Constitution, recognizing the importance of the environment, treated about it in many of its parts, even dedicating a specific chapter (Chapter V About Environment, inserted in Title VIII About Social Order). The brazilian constitutional text established to everyone the fundamental right of enjoying an equilibrated environment, obligating the State and all society to defend and preserve the environment to the present and future generations. The economic growing process, that predominated and still persist in the big majority of the countries, where is practiced the capitalist system, has in the enterprises (legal persons) one of its main actors. Many times, these enterprises, especially in the actual globalized world in where we live, where the gain of money is priorized, ends, at the moment they act, making damages to the environment. These damages are, many times, considered by the law. crimes against the environment. The 1988 Brazilian Constitution, according to the Modern Criminal Law, realizing that many crimes were being committed by the enterprises, established in article 225, §3rd, the criminal responsibility of the legal persons. Almost ten years after the 1988 Brazilian Constitution, was published the Law number 9.605/98, in which third article established the penal responsibility of the legal persons that practice crimes against the environment, without excluding the individual responsibility

A responsabilização criminal no estado democrático de direito: o equilíbrio entre a efetividade e os limites da pretensão punitiva da sociedade

This paper analyzes the relationship between fundamental rights and the exercise of the claim punitive society in a democratic state. It starts with the premise that there are fundamental rights that limit and determine the validity of all forms of manifestation of the claim punitive society (legislating, investigative, adjudicative or ministerial) and there are others that require the state the right exercise, fast and effective of these activities. Travels to history in order to see that the first meaning of these rights was built between the seventeenth and eighteenth centuries, after all a history of abuses committed by state agents in the exercise of criminal justice, and positively valued in the declarations of human rights and proclaimed in the constitutions after the American and French Revolutions, while the second meaning has been assigned between the nineteenth and twentieth centuries, when, because of the serious social problems generated largely by absenteeism state, it was noted that in addition to subjective rights the individual against the state, fundamental rights are also objective values, which trigger an order directed the state to protect them against the action of the offending individuals themselves (duty to protect), the mission of which the State seeks to discharge, among other means, through the issue of legal rules typifying the behavior detrimental to such rights, subject to penalties, and the concrete actions of public institutions created by the Constitution to operate penal law. Under this double bias, it is argued that the rule violates the Constitution in the exercise of the claim punitive society as much as by excess malfere fundamental rights that limit, as when it allows facts wrong by offending fundamental rights, remain unpunished either by inaction or by insufficient measures taken abstractly or concretely provided

O regime constitucional da contribuição de intervenção do domínio econômico aplicável ao setor de combustíveis

The performance of the State in the economic area is only legitimized when to be given in virtue of the protection of the principles established constitutionally. Thus, the economic intervention of the State prioritizes the formation of a joust economic order and in this context, it fulfills to us to define, to the long one of this work, the contours of the intervention of the State in the economic domain in the presence of the Federal Constitution of the Republic of 05 of October of 1988, and, more specifically, in the petroliferous economic sector by means of the interventive contribution instituted after the Constitutional amendment 33/2001, with Law 10.336/2001. With the creation of this institute, in Brazil, emerged innumerable quarrels concerning its constitutional legitimacy, directing uncurling of the research to the study of the state intervention through this contribution and its constitutional limits, in the purpose to demonstrate the parameters for its institution and application. In this way, the interventive contribution in the fuel sector (CIDE-Combustíveis) shows itself as an intervention instrument on the economic domain, acting in way to finance the indirect performance of the State, specially in what concerns to the promotion of the principle of sustainable development principle. Therefore, CIDE-Combustíveis is an able instrument to concretizes the mentioned constitutional principle. Thus, the division of its incomes promotes the consolidation of the principle of the cooperative federalism. In this direction, from premises of the environmental tax law, this intends to demonstrate the utility and constitutionality of this exaction tax, primordially with regard to the realization of the basic right to the balanced environment

Guerra contra as drogas: uma análise sob a perspectiva do princípio da proporcionalidade

As substâncias entorpecentes acompanham a humanidade desde o início da civilização. No entanto, várias delas foram consideradas proscritas ao longo do tempo. Seu combate foi inaugurado na comunidade internacional a partir do começo do século XX. No início, tinha o condão eminentemente moral, porquanto a proibição encerrava, por princípio, a proteção da ética ameaçada pelo padrão desviado do consumo de estupefacientes. Na década de 1970, a guerra contra as drogas, expressão cunhada nesse período, evoluiu para se tornar o meio pelo qual o consumo seria mitigado. Dez anos mais tarde, ante à impossibilidade de sucumbir o narcotráfico, passou a ser um fim em si mesma o novo argumento para os esforços militares dos Estados Unidos da América. A criminalização das substâncias entorpecentes consideradas ilícitas é fundamento jurídico da guerra contra as drogas. Esse modelo proibicionista encontra argumento no direito penal do inimigo, segundo o qual o Estado pode, em situações que exponham a coletividade a grave perigo, negar à determinada categoria de criminosos (os inimigos) as garantias inerentes ao direito penal, cabendo-lhes apenas a coação estatal. Mesmo tendo consumido trilhões de dólares, encarcerado aos milhões e custado a vida de milhares de pessoas, pode-se dizer que a guerra contra as drogas não reduziu a oferta e o consumo de substâncias entorpecentes consideradas ilícitas, nem mitigou os danos delas decorrentes pelo contrário, tornou-se um problema de segurança pública. Assim, impõe-se a verificação da constitucionalidade da norma penal que fundamenta a guerra contra as drogas, sob ponderação do princípio da proporcionalidade. Referido postulado cobra que a norma seja adequada, cumprindo a finalidade pretendida, necessária, não havendo meio menos gravoso à obtenção do mesmo fim, e proporcional, estrito senso, que a sanção imposta ao indivíduo seja equivalente ao dano que se quis prevenir. Em matéria penal há de se incluir um outro elemento, a ponderar se as consequências da proibição em matéria penal, por si só, são mais graves que os consectários dos fatos que se pretendem proibir - exige-se que a lei seja socialmente menos ofensiva. A norma penal que fundamenta a guerra contra as drogas não se mostrou hábil a mitigar os danos sociais delas decorrentes sendo, por isso, inadequada. Existem meios alternativos à criminalização mais eficientes à esse objetivo, pelo que se faz desnecessária. Na medida em que estupefacientes mais nocivos à coletividade são considerados lícitos, a criminalização de drogas menos danosas se mostra desproporcional. E, uma vez que dela resultam graves danos à sociedade, não atende ao critério da menor ofensividade social. É, portanto, inconstitucional

Lei Maria da Penha: da convivência com as práticas do sistema de justiça no submédio do Vale do São Francisco

The inequalities that mark the women’s lives in societies around the world have been the subject of intense discussion by the feminist movement, with developments in questioning about possibilities of full citizenship. In this scenario the Brazilian feminist movement has achieved steadily, in recent decades, an effort to participate in the formulation of the public policy agenda, as well as the realization of demands to institutionalize the legal parameters as regulations for the issue of violence against women. On the grounds of social justice, many discourses are made with a focus on reframing the institutional role of the state in the areas of constitutional law and criminal law. Considering these discourses, proposals were reformulated and the action of the state was resized, what ended in the enactment of Law 11,340 / 2006 (Maria da Penha Law), with a great impact on the Brazilian criminal justice system. Taking this perspective as its starting point, this research is focused on understanding the struggles for access to the legal field regarding the implementation of the Maria da Penha Law. This qualitative and quantitative research analyses the way the social practices and social representations which involve activists of the feminist movement and operators from the justice system are established in Juazeiro/ BA and Petrolina/PE before the institutional reshuffles of the state. As a result, it was revealed that, despite inconsistencies in the performance of the criminal justice system, the positioning of feminist activism is grounded on the assumption.

Direito e etnoconservação: estudo da participação na gestão ambiental da RDS Estadual Ponta do Tubarão - RN

Given the prediction of the Federal Constitution of 1988 about the need to establish some areas to be especially protected, it was published the Law No. 9.985/00, which established the National System of Conservation Units. Several aspects make these units differ from one another, one of them being the possibility of presence of even traditional human populations inside the area to be protected. In case of allowing these people to continue in the area, it still must be provided their participation in the management of the new space. Management councils show up, then, as a specific way of social and political participation. This way, from an overview of legal norms and the doctrine that are relevant to the topic, It is aimed to make a legal and theoretical survey about the process of traditional populations permanence inside Conservation Units, with aspects linked to ethnoconservation and, therefore, to participation in environmental management of these specially protected spaces

Comunidades tradicionais em áreas protegidas: convergências e lacunas da Política Urbana e Ambiental na Reserva de Desenvolvimento Sustentável Estadual Ponta do Tubarão/RN

This work presents a reflection on possibilities and boundaries of consolidation and expansion of human settlements characterized as traditional communities that are located within protected areas, using as study reference the State Sustainable Development Reserve Ponta do Tubarão, at Rio Grande do Norte state. The main topics highlight the conflict between the right to housing and the prevalence of fundamental rights of traditional populations, opposed to the diffuse right to environment, according to the regulatory framework of the Brazilian Urban and Environmental Policies. At the same time that these settlements, historically built, are substantiated by the principles of recognition of rights to traditional populations, they are in a condition of complexity to the resolution of conflicts in its urban dimension and lead to an impairment of natural sites. This work questions how the instruments of land use and occupation are defined and relate to environmental planning, especially considering that the settlements are located in Permanent Preservation Areas (APP). It aims to further the discussion of the urban dimension in settlements, characterizing its formation and growth process, to identify the gaps and convergences between the Urban and Environmental Policy, under the foundations of a socio-environmental approach. The results spotlights the conflicts between occupation and natural areas, inferring that the definition of Urban Policies instruments and its integration with Environmental Policies instruments account for essential and priority actions to the achievement to the rights to a sustainable city, as determined in the Cities Statute and environmental protection goals, defined for the Conservation Units

Análise do licenciamento ambiental como instrumento de política do meio ambiente no Rio Grande do Norte Período 1992-2003

This analysis on the ambient licensing is based on a research that identifies the fragilities and advances of the application of this instrument of politics of the environment in the ambient politics of the Rio Grande do Norte, in the period of 1992 the 2003. The isolated urban area of Búzios, situated in the City of Nísia Floresta/RN, situated in the eastern coast of the State, where concentrates the boarding of the ambient question as a matter in the Brazilian process of urbanization, over all the institutionalization and implementation of the ambient licensing. They are distinguished in the used methodology in consultation to the diverse involved social segments with the ambient subject in study, the example of the managers, technician and specialists, as well as the application of the legislation and norms techniques, the forms of appropriation of the common wealth and the procedures of ambient licensing of the competent agencies. The results of the research designate that the ambient licensing while instrument of the ambient politics is one of the alternatives more efficient as techniques in the process of sustainable development, since it is beyond the prerogatives to conciliate the activities and enterprises with the conservation of the environmental resources and natural benefits to the societies. In the RN one evidenced progress in the ambient legislation and the instructions techniques, and that the imperfections and limitations in the system of ambient licensing are not directly on to the instruments, but in the implementation of mechanisms of the ambient agencies. This because they do not make use of operational structure to apply in practical and established abilities, as an ambient management, institutional joint and deliberations of the State Counselor for Environment

Ne bis in idem: limites jurídico-constitucionais à persecução penal

This legal research aims to demonstrate the prohibition in the Brazilian criminal system of a multiple imputation for the same fact in a simultaneous or successive way. For that it is developed a different idea of the subject. Through comparative, eletronic and bibliographical researches, the dissertation was accomplished in a way to establish the content of the foundations of the criminal procedural emphasizing as fundamental premise the values of the Constitution. In the first section it was demonstrated the limits of the theme and the objective of the research. After that, it was analyzed the basic function of the criminal suit which has the important mission of limiting state's punitive power. In the same way, the criminal procedure corresponds to a warranty of the citizens' freedom. In the same section, it is shown how it is possible to abandon the myth of the real truth in the criminal law system. In the third section of the research, there were pointed elements and definitions about the cognition object, specially the litigious object or "thema decidendum", and also the peculiarities of the judged cases. In the fourth section the subject about origins and evolution of the criminal procedure and its objectives in the legal system is developed to demonstrate its perspectives. Some aspects of the identity's concept of the presupposition of the facts are as well demonstrated in order to relate the theme to the prohibition of multiple imputation. There are also considerations about some other important aspects as the incidence of the legal rules and the possible change on the elements of the penal type. There are several comments about legal procedural in other legal systems comparing them to Brazilian's most elevated Courts. In the end it was systematized the limits to criminal imputation, emphasizing the defende's right as a foundation of the legal system. Is was registered that the ius persequendi can be exercised once