Typical Fact (Fato Típico) in Criminal Law

A set of flashcards covering the fundamental concepts, theories, and authors related to 'Fato Típico' (Typical Fact) and 'Conduta' (Conduct) in Brazilian Criminal Law based on the the provided summary.

Tripartite Theory (Teoria Tripartida)

The majority doctrine in the Brazilian legal system, which considers that a crime is composed of three essential elements: typical fact (fato típico), unlawfulness (ilicitude), and culpability (culpabilidade).

Classical Theory of Conduct (Teoria Clássica)

Idealized by Franz Von Liszt and Ernst Von Belling, it defines conduct as a voluntary bodily movement that causes a modification in the external world ($naturalistic causality$), where intent (dolo) and negligence (culpa) are species of culpability rather than part of the conduct itself.

Neokantist Theory (Teoria Neokantista)

Developed by Edmund Mezger, this theory treats conduct as a voluntary human behavior (action or omission) and introduced normative and subjective elements into the typical fact, though intent and negligence remained within culpability.

Finalist Theory of Action (Teoria Finalista)

Idealized by Hans Welzel and adopted in Brazil, it defines conduct as human behavior, conscious and voluntary, directed toward a specific end. It migrated intent (dolo) and negligence (culpa) from culpability to the typical fact.

Moderate Functionalism (Funcionalismo Moderado)

Developed by Claus Roxin, it argues that the purpose of Criminal Law is the protection of legal interests (bens jurídicos) and divides crime into 'Unjust' (typicity + unlawfulness) and 'Responsibility' (culpability + necessity of punishment).

Radical Functionalism (Funcionalismo Radical)

Proposed by Günther Jakobs, it defines the function of Criminal Law as the reaffirmation of the legal norm's validity and the preservation of the system ($systemic approach$).

Criminal Law of the Enemy (Direito Penal do Inimigo)

A theory by Günther Jakobs suggesting that individuals who repeatedly and deliberately violate the law lose their status as citizens and should be treated as enemies, leading to the flexibilization of legal guarantees and the anticipation of punishability.

Typical Fact (Fato Típico)

According to Cleber Masson, it is a human fact that perfectly aligns with the elements described in a criminal statute (tipo penal).

Elements of the Typical Fact

Conduct (conduta), Causal Link (nexo causal), Naturalistic Result (resultado naturalístico), and Typicity (tipicidade).

Material Crimes (Crimes Materiais)

Offenses where the statute describes both a conduct and a specific naturalistic result, and the occurrence of that result is essential for the crime to be considered consummated (e.g., homicide).

Formal Crimes (Crimes Formais)

Offenses where the statute describes a result, but its actual occurrence is unnecessary for consummation; the mere performance of the conduct suffices (e.g., extortion).

Crimes of Mere Conduct (Crimes de Mera Conduta)

Offenses where the law only describes a behavior and no naturalistic result is even possible (e.g., illegal possession of a firearm).

Vis Absoluta (Coação Física Irresistível)

Physical force that completely eliminates the agent's will, acting only as an instrument. It excludes the conduct element of the typical fact.

Vis Compulsiva (Coação Moral Irresistível)

Moral coercion where the agent's will exists but is tainted. It does not exclude conduct but rather excludes culpability due to the inexigibility of a different conduct.

Actio Libera in Causa

A theory allowing the imputation of a result to an agent who, while unconscious at the time of the crime (e.g., due to voluntary intoxication), was free in their will at the time they chose to ingest the substance.

Proper Omission (Crime Omissivo Próprio)

A crime where the duty to act is directed at everyone and is consummated by the mere failure to act (e.g., omission of help). These are always crimes of mere conduct and do not allow for attempt.

Improper Omission (Crime Omissivo Impróprio)

Also known as 'Commission by Omission,' it occurs when an agent has a legal duty to prevent a result (garante). The agent is held responsible for the result as if they had caused it directly (e.g., a mother failing to feed her child).

Naturalistic Result

A physical or perceptible modification in the external world caused by the agent's conduct.

Juridical Result

The injury or danger of injury to the legal interest (bem jurídico) protected by the norm; every crime has a juridical result.

Theory of Equivalence of Antecedents ($conditio sine qua non$)

Adopted by Art. $13$ of the Brazilian Penal Code, it considers 'cause' to be any action or omission without which the result would not have occurred, using the Hypothetical Elimination Process (Method of Thyrén).

Adequate Causality Theory (Teoria da Causalidade Adequada)

Developed by Von Kries and adopted exceptionally by Art. $13$, §$1$ of the Brazilian Penal Code, it defines cause as the event that is not only necessary but also suitable (idônea) to produce the result based on common experience.

Theory of Objective Imputation (Teoria da Imputação Objetiva)

A theory by Claus Roxin that complements the causal link by requiring that the agent created or increased a legally prohibited risk, and that this risk was realized in the specific typical result.

Formal Typicity (Tipicidade Formal)

The judgment of correspondence or alignment between the concrete conduct performed and the description provided in the legal type (estatuto).

Material Typicity (Tipicidade Material)

The actual injury or significant danger of injury to the legal interest protected by the norm, which can be excluded by the Principle of Insignificance.

Conglobant Typicity (Tipicidade Conglobante)

Proposed by Zaffaroni, it argues that a conduct is only typical if it is 'anti-normative,' meaning it is not determined or encouraged by any other part of the legal system.

Nucleus of the Type (Núcleo do Tipo)

The principal verb of the criminal description (e.g., 'to kill' in homicide).

Normative Elements (Elementos Normativos)

Elements of a crime that require a value judgment by the interpreter, which can be juridical (e.g., 'unduly') or cultural (e.g., 'obscene').

Direct Intent of the 2nd Degree (Dolo de 2º Grau)

Intent directed at 'necessary consequences'—side effects that are inevitable for the agent to reach the primary desired result.

Eventual Intent (Dolo Eventual)

Adopted by the Theory of Assent, it occurs when the agent foresees the result as possible and acts anyway, assuming the risk and showing indifference toward whether the result occurs.

Conscious Negligence (Culpa Consciente)

Occurs when the agent foresees the possible result but sincerely believes it will not happen because of their skill or specific ability to avoid it.

Improper Negligence (Culpa Imprópria)

Occurs when the agent, due to an avoidable error, believes they are in a situation that would justify their behavior (putative justification), but the law treats it as negligence for punishment purposes.