Teoria da valoração crimino-fenomenológica: a mudança de paradigma da opinio delicti

Abstract

Criminal-Phenomenological Valuation’s Theory is as a tool that reframes and re-legitimizes Criminal Law. Through a necessary interdisciplinary study, issues related to Administrative Law, Constitutional Law and Criminal Procedure are addressed, as well as Criminology and, mainly, Philosophy, reestablishing crime’s analysis in its essential conception on transcendental mode. In this way, both prejudiced feelings as well as private ideas arising from the natural world are removed, recognizing criminal investigation as the instrument that materializes the sum of characteristics and factual circumstances, in this institute, that must be legally framed, in order to enable a proper beginning of criminal’s branch intervention, as a subsidiary science that it intends to be. Thus, Phenomenology will play an important role by defining foundations throughout doctrinal support to development main theory. On this occasion, an important gap related to crime’s theory is filled, which, until then, has focused on the general objectives of configuring that supports an infraction, for example, according to the finalist or functionalist models, but which disregarded the human factor that experiences the beginning of all criminal proceedings. This increasingly contributed to the depreciation of the entire criminal justice system. In turn, this new theory will be responsible for redefining both subjective, spatial and temporal positioning to evaluate the circumstances and the nature of the criminal offense committed, promoting a re-reading of opinio delicti, as a true institute of substantive law, that represents crime’s essence by an transcendental way, considering those who investigate it and find it at the closest moment related to its occurrence. This allows emphasizing the evidence in crime's constitution process, privileging its real type opposing ideal type, determining, as well, a new management parameter to manage crime-related institutes as well as its application. By defining crime’s essence, procedural institutes can be related in such a way that allows immediate exercise of fundamental rights and guarantees originated by the Constitution, bringing Criminal Law closer to an ideal of justice