Bem jurídico e princípio da proporcionalidade: uma análise crítica da pena em abstrato

Abstract

This research shows that there are some dispositives in the criminal law where the penalty in the abstract is disproportionate, either a lack of a well-deserving of legal protection law or because the quantum of the penalty does not fit the riteria of proportionality. It presents the “bem jurídico penal”, exposing its evolutionary synthesis, its concept, the principles of minimum intervention and offensiveness, as well as issues relevant to the existence of legal rights supraindividual criminal and constitutional issues of taxation of criminalization. It analyzes the principle of proportionality, developing its concept, content, its historical origin and evolution, the constitutional dedication and nomenclature in comparative law. When it refers to the content of proportionality, it adopts the current that presents the subprinciples suitability, necessity and proportionality in the strict sense as fundamental aspects of proportionality in the broad sense. It brings some criminal law examples that fall outside the rule of proportionality, considering the legal interest in care. It concludes that it is necessary to fit the Brazilian criminal law with the parameters of proportionality and to the requirements of the legal doctrine of “bem jurídico penal”, decriminalizing some conducts or adjusting the penalty in the abstract.