Penas restritivas de direitos: alternativas de punição justa: uma análise dos fins das penas restritivas de direitos à luz da teoria dialética unificadora de Claus Roxin.




Along the centuries public penalty has been going through significant change in its purpose and execution. During large periods in the history of mankind cruel sanctions were applied such as mutilations flogging branding irons forced labor at galleys and other ones of the same nature until getting to the freedom-taking penalty which showed not to be suitable to the resocialization of the ones who were convicted. International congresses are held with the intention of searching for a more humane way of repression by the state and by means of these congresses changes start to arise in punishing rules through alternatives to the prison disciplinary rules. In several countries penalties that are alternative to prison arise and in Brazil Law 7 209/84 reformed the general part of the penal code in which community service rendering temporary interdiction of rights and weekend limitation are foreseen. Law 9 714/98 established the pecuniary provision and the loss of assets and values. Other penalties restricting rights arise by means of special laws which demonstrate their acceptance in the Brazilian penal system of alternative penalties. We start then questioning the existence of certain exaggeration of the legislator when issuing these laws and the following problem is brought up: are the penalties that restrict rights an adequate proposal for the small and medium offensive potential punishment? Are they efficient in the sense of the accomplishment of the retribution general preventive and special purposes of the penalty? The hypothesis proven is that the penalties that restrict rights are adequate to punish transgressors of small and medium offensive potential depending on the subjective conditions since they have total efficacy when accomplishing the general and special purposes of the penalty but they depend on clear-sighted judicial application and execution infrastructure. It was also found that the system applied in the decision application and execution of penalties that restrict rights has many points in common with the unifying dialectical theory by Claus Roxin which was taken in research as sign of justifying the State power to impose penalties. In the end the conclusion was that the just punishment related to crimes of small and medium offensive potential is applied by means of sanctions that restrict rights and prison was reserved for the authors of grave crimes for dangerous and / or usual agents while other efficient sanctions do not arise in the punishing context.


teoria dialética unificadora ciencias sociais aplicadas eficácia penalties that restrict rights penas restritivas de direitos unifying dialectical theory efficacy

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