criminal law and sanctioning administrative law as parts of the brazilian punitive macrossystem and rejection to bis in idem
This research deals with the Brazilian punitive macrosystem, covering mainly the sanctioning systems of Criminal Law and Sanctioning Administrative Law, using the deductive method and starting from the premise that these sanctioning spheres are minor parts of this complex macrosystem. The study cont...
| Autores: | , , |
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| Tipo de documento: | artigo |
| Estado: | Versão publicada |
| Data de publicação: | 2022 |
| País: | Brasil |
| Recursos: | Pontifícia Universidade Católica de São Paulo (PUC-SP) |
| Repositório: | Direitos Democráticos & Estado Moderno |
| Idioma: | português |
| OAI Identifier: | oai:ojs.pkp.sfu.ca:article/56629 |
| Acesso em linha: | https://revistas.pucsp.br/index.php/DDEM/article/view/56629 |
| Access Level: | Acceso aberto |
| Palavra-chave: | Direito Penal Direito Administrativo Sancionador Independência Mitigada Bis in idem Criminal Law Administrative Sanctioning Law Independence Mitigated Derecho penal Derecho Administrativo Sancionador Independencia mitigado Bis in ídem |
| Resumo: | This research deals with the Brazilian punitive macrosystem, covering mainly the sanctioning systems of Criminal Law and Sanctioning Administrative Law, using the deductive method and starting from the premise that these sanctioning spheres are minor parts of this complex macrosystem. The study contemplates an analysis of the existing points of contact between Criminal Law and Sanctioning Administrative Law, under the aspect of a relative dependence or subordination of the latter in relation to the former. The approximation of these punitive microsystems was investigated under certain conditions of similarity highlighted in precedents of the European Court of Human Rights and the Federal Supreme Court, in order to understand the meaning of the mitigated independence between them. After scrutiny of the premise, the following problem situation was identified: What is the degree of binding of the criminal acquittal sentence on the same factual-evidence object of investigation in the area of Sanctioning Administrative Law? As a research hypothesis, using the state of the art on the subject as a parameter, it was found that the dominant doctrine and jurisprudence defend the independence of these punitive systems, however, it was found that there are other aspects of criminal law that may reflect on the field of action of Sanctioning Administrative Law. It was found that a new hermeneutical line emerges in doctrine and jurisprudence that rejects punishment in duplicity (ne bis in idem) under the argument of the mitigated independence of these sanctioning spheres. The present research was developed in this north with the purpose of defining a sanction model based on the mitigated independence of the punitive spheres with hierarchical ascendancy of the Criminal Law. |
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