Condições objetivas de punibilidade

Abstract

Despite the dogmatic effort, Modern Criminal Law has not yet managed to present to the legal operator all the systematic scientific solutions for daily existing situations. The Objective Conditions of Punishability are, perhaps, the most vigorous example of these axiological gaps which, in the national doctrine, are even ignored in the majority of the basic texts, with very few exceptions. Even in Italy, the only European country where the Objective Conditions of Punishability are expressive in the Criminal Code, the quarrel seems to be arduous. Foreign doctors of law who dealt only with this subject agree only on the fact of it being one of the subjects that causes the most conflicting positions. Thus, there is no dominant position; which leads us to the conclusion that it is possibly the most controversial issue of the theory of crime. For an element apparently dissociated of the will of the author to exist in Modern Criminal law, where the punishability of the State, to be accomplished or to be increased, in restrictive penalties of freedom, depends on an objective factor that does not find support in the unjust one or in the culpability, abandons the traditional tripartite structure of crime and presents a strong politician-criminal content. The crux of the subject is defective and brings enormous consequences. Therefore, the way we understand and locate these elements reflect institutes such as: time of crime, statue of limitation, participation and error; besides criminal law s main question, namely, the application or not of the penalty or, in more serious cases, the increase of the penalty. All this has no direct connection to the will of the author of the crime and depending on factual situations which escape from the control and the will of the person charged. It is up to the scholars to search an interpretation that contemplates the criminal principles of the Modern Criminal law, specially the principle of culpability, hindering the objective criminal liability. The present work searches mainly for a systematic vision in the foreign doctrine and in the few existing national texts, in order to point out dogmatic and practical solutions with respect to the problem the national legislation faces, where they are used and misunderstood