A MIGRAÇÃO DA CAUSA SUPRALEGAL DE EXCLUSÃO DA ILICITUDE PARA O PLANO DA TIPICIDADE PENAL

Abstract

The dogmatic function of the consent of the offended has the legal nature of a supralegal cause of exclusion of illegality, projecting effects for the second substrate of the analytical concept of crime, not being listed in the list of justifying causes of the Criminal Code. Despite this theorization that prevails in the doctrine, the objective of this article is the construction of the displacement of this Abstract plan, is consented in the concrete plan by the holder of the legal good. For this, we will start from Causalism - Lizset-Beling-Radbruch system -, for a better understanding of the structuring elements of this mechanistic knowledge of crime, and then within the causal relationship we will measure the physical, psychic causal nexus and, finally, the normative nexus with a filter antecedent to the subjective nexus. At the end, a detail about the consent of the offended, its legal nature, elements of validity and how it can be moved to the first substrate of the crime with the Theory of Objective Imputation.