Reserva Legal Cp

37. The direct and indirect public administration of one of the competences of the Union, the Länder, the Federal District and the municipalities shall comply with the principles of legality, impersonality, morality, publicity and efficiency, as well as the following principles: From a legal point of view, an offence is a typical conduct of criminal law which is punishable by imprisonment or imprisonment either in isolation, or cumulatively with the penalty of fine (art. 1, Act of introduction into the Criminal Code) and misdemeanours, the offence to which the law leads, solitary confinement, simple imprisonment or fine, or both. alternative or cumulative. The fact that the principle of legal reserve requires that the normative content be taxed does not mean that it must be complete. That is why the legal basis stipulates that there must be a description of the minimum behaviour. We can see that the principle of legality has a broader spectrum than that of the legal reserve. (…) XXXIX – there is no crime without a prior law defining it, nor punishment without prior legal commentary; (We will. It also requires the analysis of the two types of legal reservation according to the guidelines of the dominant doctrine: the principle of legal coercion or the principle of criminal legality determines that only conduct provided for by law as such is considered a criminal offence. If a certain conduct of the agent is not provided for by law as illegal, it is necessarily legal, free and unenforceable by the State. 60 – The principle of legal reserve is equivalent to the principle of legality in so far as any legal order requiring specific conduct must be of one of the types provided for by the legislative procedure. The Supreme Court says that there is also a democratic basis in the principle of legal deference: it establishes that the people determine what conduct is a crime and their respective penalties.

The principle of legality, quoting the word “law”, describes it in a broad sense, i.e. by authorizing one of the normative types provided for in Article 59 of the Constitution: the principle of legality set out in Article 5(II) of KS/88 stipulates that no one is obliged to do or abstain from doing otherwise than by operation of law. Therefore, the obligations of individuals can only be created by normative means generated in accordance with an appropriate legislative procedure. Make this brief observation To better understand what principles are, let`s move on to the analysis of the constitutional principle of deference! The principle of legal coercion is enshrined in article 5 xxxix of the Federal Constitution and article 1 of the Criminal Code. And it`s a permanent clause. In a simple way, it provides that there is the exclusivity of the law for the creation of crimes and offenses and the punishment of the corresponding penalties. There is no crime without a prior law defining it, nor is there punishment without a prior judicial investigation, as expressed by the CF and CP. Criminal crimes and misdemeanours are listed at common law. The Supplementary Act cannot establish a Committee on Criminal Offences or Sanctions, but only eliminate the question to specify the offence or offence. Provisional measures may not be taken in criminal matters (Art. 62 § 1 I (b)) which are beneficial or nauseating for the accused.

However, the Supreme Court has already established the jurisprudence that MP can be used in favor of the defendant RHC117.566/SP. The principle of deference acts as a limiting factor for the application of the law, otherwise the judiciary would have legislative issues. Therefore, the sanction must be fair, of nature and accuracy and appropriate to the case, which obviously requires a prior legal determination. The entire Brazilian legal system has a source of principles that must be followed, similar to criminal law, we will analyze in the light of the above the principles of legal restraint and individualization of the sentence. CAREFUL! The open criminal type weakens the guarantee function of the criminal type, as it can take different forms at the time of interpretation. Nevertheless, the open criminal type does not circumvent legality and tax activity. The legal reservation shields us from the free will of the State, because no agent will be punished without motivation, since it requires clear proof of the authorship of a behavior previously qualified as criminal, the investigation of which took place within the limits of the law, and the penalty will be proportional to the concussion inflicted on the victim, so that the punishment is not easy. or too heavy for the accused. The indoctriator solves the difficulty of differentiation on the basis of positive constitutional law in view of the power that the Constitution grants to the legislative power. Therefore, if this concession consists of a broad and general power over all kinds of relations (…), we have the principle of legality. However, if the Constitution reserves certain contents to the law on a case-by-case basis, it is the principle of legal constraint (SILVA, José Afonso.

Positive Constitutional Law Course. 22nd ed. São Paulo: Malheiros, 2000. p. 421.). (a) Absolutely: when the discipline of a particular matter is reserved to the law by the Constitution. Thus, any other sub-legal source is excluded; The last explanation we have seen above concerns the legal basis of the principle of legal coercion: the law must be exhaustive and describe with the broadest possible content the minimum content of criminal conduct. We have already written here on the blog of Master Juris about the main criminal principles. The idea of this article, however, is to analyze in more detail the constitutional principle of legal restriction. The principle of deference exists when a constitutional norm attributes a particular issue exclusively to formal law (or to interpretations established in practice), thereby removing it from the discipline of other sources of subordinate sources.

(CRISAFULLI, Vezio apud SILVA, José Afonso da. Positive Constitutional Law Course. 22nd ed. São Paulo: Malheiros, 2000. p. 421.) Also called the principle of strict legality, it comes from the Magna Carta of 1215 by John Landless. According to him, the law, and only the law, is the immediate formal source of criminal law, so that it alone can create crimes and determine the respective penalties.