Sentença absolutória penal por inexigibilidade de conduta diversa e seu reflexo na esfera cível

Abstract

This paper arose from the study, research and observation of some antagonistic decisions and from the non-uniformity of the doctrine as to the proposed theme: what are the legal grounds that the Judge can quote in the dispositive part of the criminal sentence when he absolves the defendant due to unclaimable adverse behavior? The crucial point involves the analysis of the juridical nature of the applicability of the thesis of unclaimable adverse behavior under an enlarged view. Nevertheless, it can be concluded that Article 386 ofthe Code of Criminal Procedure does not include a subsection in which the Judge, when absolving the defendant, for being sure of unclaimable adverse behavior, mar base bis decision in the dispositive part of the sentence. It is worth highlighting that only the decision part, that is, the dispositive pari of the sentence, tums the conclusion into a material res judicata; that does not happen with the statement of facts in the sentence, where the sentencer presents bis beliefs, bis logical thinking, and bis conviction. Such non-pacific situation between the jurisprudence and the doctrine raised the interest for research and study, which lead to the proposition of the inclusion of .an express subsection under Article 386 of the Code of Criminal Procedure: "to be proven that there is no other behavior to be claimed from the author of the fact" . The adopted methodology was that of bibliographical research, complemented by field research, i.e., Court sentences and Monocratic sentences etc. The present paper intends, by presenting its viewpoint, to consider the normal mau as being different from the so-called hypothetical "average man", and being normal means that he lives in a phenomenal world driven by normal situations. The criminal code, whose main purpose is punishment, has standardized most human behaviors. However, it is impossible to claim a theory of must-be for each concrete case. Thus, the application of the thesis, under the proposed viewpoint, makes it possible for the Judge to individualize the behavior under judgment, analyzing the real circumstances that constitute the fact, checking if the Criminal Legal System foresees a different behavior to be claimed ITom the individual. Otherwise, even when another ruling standard cannot be applied, the deadlock is solved by considering that other behavior is not claimable for that normal concrete case lived by a normal, non-hero, non-average mau, providing the society with a judgment that is closer to the normal human reality