A teoria do concurso de leis e de crimes

Abstract

This thesis addresses the theory of concurrence of laws and crimes, with a specific focus on formal concurrence. Following a brief historical overview, the work evaluates the severity of the Brazilian sanctioning system through a comparative analysis of legislation. It explores the nature of the concurrence of laws and its systematic placement from a concursal perspective, rather than a merely interpretative one. The study delves into the two most significant evaluative guidelines in the theory of concurrence: the prohibition of ne bis in idem and the need for comprehensive evaluation of the act, both grounded in the principle of culpability. Additionally, the thesis seeks to connect these ideas not only with the concurrence of laws but also with formal concurrence. Regarding the concurrence of laws, a proposal is presented that considers the logical relationships between norms—subordination, interference, and heterogeneity—as well as evaluative relationships. As evaluative parameters, the concepts of unity of outcome disvalue (Erfolgseinheit) and the scope of a standard-case (Regeltatbild) are suggested. The study also examines the three principles for resolving conflicts in the concurrence of laws— specialty, subsidiarity, and consumption—while rejecting the principle of alternativity. Concerning formal concurrence, the thesis analyzes doctrinal attempts to legitimize its distinct sanctioning treatment, advocating for the recognition of partial bis in idem. Various legal constructions aimed at identifying a single act, whether for characterizing a single crime or formal concurrence, are also examined. Finally, the study addresses improper formal concurrence and the specificities of formal concurrence in omissive, negligent crimes, and in cases of joint participation (concurrence of agents).