O Principio Da Reserva Legal Ou Legalidade

The principle of legal coercion or the principle of criminal legality provides that only conduct provided for as such by law is to be 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. The principle of legal constraint is enshrined in article 5, item XXXIX, of the Federal Constitution and article 1 of the Criminal Code: also known as the principle of strict legality, it derives from the Magna Carta of 1215 of João Sem Terra. 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. Make this brief observation To better understand what principles are, let`s move on to the analysis of the constitutional principle of deference! The Disarmament Act sets a deadline for the supply of illegal weapons to the authorities in order to erase the criminal responsibility of these owners. After the original deadline, an extension was granted by means of an interim measure. The question of the validity of the measure reached the Supreme Court, which ruled that the law was not illegal because it was more favourable. 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.

We can consider the principle of criminal legality as the main beacon of the criminalization of conduct by the State. According to DOS Santos, “it is the main constitutional instrument of individual protection in the modern democratic rule of law”[1], and according to Bitencourt, “it is an imperative that does not allow deviations or exceptions and represents a realization of legal conscience that obeys the demands of justice that only totalitarian regimes have denied it”[2]. Article 5(II) of the Federal Constitution contains the principle of legality: Art. 60 – The principle of reservation of rights is equivalent to the principle of legality in so far as any legal system requiring a particular conduct must emanate from one of the types provided for by the legislative procedure. On the other hand, the principle of legal constraint is not confused with the above, since it assumes that criminal law is a matter reserved for law, deriving from the respective legislative power, because there are the representatives of the people. Thus, this principle is the democratic face of the creation of the law that defines the fact as a crime, a characteristic feature of the democratic rule of law. This time, no other normative source can be accepted in relation to this issue, as it would be unconstitutional. (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; It is also important to analyse the two types of legal reservation according to the direction of the dominant doctrine: it can be said that the principle of legality has a broader spectrum than that of the legal reserve.

Principle of relative legal reserve: The law defines the bases, grounds or general legal system of regulation + regulation© through another normative source of an infra-legal nature. CORRECT QUESTION: The principle of legality differs from that of the legal reserve: the first stage of pre-pressure is the enslavement and respect of the law and normative acts in general; The second is that the regulation of certain norms must© necessarily be done by formal law. FALSE QUESTION: The principle of legality, also©known as the principle of legal deference, requires that human behavior regulated by law be disciplined by law. The principle of legality laid down in Article 5(II) of CR/88 therefore means that no one is obliged to do or abstain from doing otherwise than ipso jure. Therefore, the obligations of individuals can only be created by normative means generated in accordance with an appropriate legislative procedure. Whatever the position, it is important to note the differences between the principles as evidence. With regard to the legal reserve, we have seen its definition above. In this law, our Constitution of 88 stipulates in Article 5, XXXIX, that “there shall be no crime without a prior law defining it, nor punishment without prior legal compromises”. This sentence implies a political dimension to the principle found in the concepts lex praevia, lex scripta and lex certa[3], i.e.

the law defining the act as a crime must be confronted with the fact under which it is found; It must be written and must be without dubiedades or generalizations, in other words, it must be safe and focus on crimes, punishments and security measures. 5°. […] XXXIX – there is no crime without a prior law defining it, nor punishment without prior legal commentary; GOOD QUESTION: The principle of legal coercion absolutely applies to onerous criminal norms, excluding onerous criminal standards from its intent. GOOD QUESTION: In general, the basics of legality and legal deference are confused. The first, however, © is broader and represents the duty of submission and respect for the law. The second is the constitutional obligation to regulate certain measures©by formal law. At this stage of the text, it is important to distinguish the principle of legal reservation from the principle of legality. However, it is also relevant to know that some authors treat them as synonyms and others place the second as a species of the first.

The principle of legality, quoting the word “law”, describes it in a broad sense, i.e. it authorizes any of the normative types provided for in article 59 of the Constitution: the fact that the principle of reservation of rights requires that the normative content be fiscal 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. 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. (b) relative: where the discipline of a particular matter is partially permitted from a source other than the law, provided that it indicates the basis on which it is to be subjected. In other words, these are cases in which the Constitution provides for the exercise of an infra-legal act in a particular area, but compliance with requirements or conditions reserved to the law. José Afonso illustrates with the hypotheses that the executive can issue decrees that modify the rates of import tax (…) meet the conditions and limits established by law (SILVA, José Afonso da.