The Non-Prosecution agreement as an effective instrument of the principle of proportionality
The present work analyzes the non-observance of the principle of proportionality in the abstract in the protection of legal interests and proposes the non-prosecution agrment (ANPP) as a pragmatic solution to the problem. The ANPP is conceptualized and detailed in its main characteristics, in additi...
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| Tipo de recurso: | artículo |
| Estado: | Versión publicada |
| Fecha de publicación: | 2023 |
| País: | Brasil |
| Institución: | Pontifícia Universidade Católica de Minas Gerais (PUC Minas) |
| Repositorio: | Virtuajus |
| Idioma: | portugués |
| OAI Identifier: | oai:ojs.periodicos.pucminas.br:article/29910 |
| Acceso en línea: | https://periodicos.pucminas.br/virtuajus/article/view/29910 |
| Access Level: | acceso abierto |
| Palabra clave: | Acordo de não persecução penal Bem jurídico Proporcionalidade em abstrato Ordenamento jurídico Princípio da proporcionalidade em abstrato non-prosecution agreement legal asset proportionality in abstract legal system |
| Sumario: | The present work analyzes the non-observance of the principle of proportionality in the abstract in the protection of legal interests and proposes the non-prosecution agrment (ANPP) as a pragmatic solution to the problem. The ANPP is conceptualized and detailed in its main characteristics, in addition to exposing its context of emergence and the criticism and praise made by the doctrine about it. The concepts of legal interest formulated by Claus Roxin and Günter Jakobs were compared, adopting one of them so that it could be analyzed how criminal law excessively protects some legal interests of lesser relevance to life in society and insufficiently protects some assets of great social value. From the analysis of the criminal legislation, it is observed that not only the legal interests are poorly weighed by the legislator, but also the seriousness of the harmful conduct. The research also points to the concept of the implicit constitutional principle of proportionality and describes how it should be applied in the criminal field in terms of committing penalties. Based on this principle, some crimes are compared in their abstract sanctions and protected legal assets to highlight the lack of proportionality in the legal system which, as a systematic unit, should not harbor, in itself, inconsistencies between the parts that compose it. The criminal non-prosecution agreement, as a criminal policy institute that was born from the need to optimize the penal system, is seen as a pragmatic instrument for correcting the disproportions pointed out and, to verify the applicability of the hypothesis sustained in this work, quantitative data of the proposals were analyzed of ANPP by the Federal Public Ministry in the year 2021. The method used in the work was the hypothetical-deductive, with the consultation of doctrine, legislation, scientific articles and application data of the ANPP provided by the Federal Public Ministry. |
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