O princípio (instituidor) da intervenção mínima: a proteção do bem jurídico e a (des)criminalização no direito eleitoral

Abstract

The paper questions whether the intervention of criminal law for the protection of legal asset under the Election Law is needed. In Brazil, this criminal intervention is significant and is given by several laws, the main one being the election code in force. The starting point is the theory of criminal legal asset, and highlights its critical function. It makes an approximation of the critical theory of criminal legal asset with the Democratic Law State and the theoretical formulation of Ronald Dworkin and Lenio Streck about the principles of law with emphasis on the principle (settlor) of minimal intervention, under the criminal law, and its warranty components, such as the exclusive protection of legal interests, fragmentation and subsidiarity. From this reflection, it makes the relation between the non-criminal protection of (relevant) legal assets and (un)criminalization in the electoral law, confronting penal expansionism and minimalism theories. The key issue of this work is to articulate these concepts to inquire about the (un)necessity of electoral criminal types, and to point for the brazilian model a non-criminal protection of legal asset under election law.