O limite da reação em legítima defesa: aplicabilidade do excesso exculpante

Abstract

The topic of self-defense is widely debated and studied by several jurists. It is a theme that finds its basis in the Federal Constitution, the Penal Code, the Criminal Procedural Code as well as in supralegal matters. As a result of the action in self-defense, supposed excesses may occur, thus entering a sphere of study that covers the requirements to consider or not the excess. The right to self-defense as well as its exclusions, the legal and supralegal norms that permeate this complex matter is the theme of this Conclusion Paper. The aspects and principles that guide the right to self-defense, the understanding of excesses, the requirements and instruments that must be observed so that self-defense is legitimate, as well as not incurring excesses. Rights related to life are always a challenge to be studied, as many discussions are raised about the matter. We analyze the legal and supralegal norms regarding the institute of self-defense, regarding its possible excess and how the legal system allows the analysis of the individual's actions, taking into account the circumstances and the momentary psychological shock that contribute to this action. . The methodology involves research into the right to self-defense as well as interpretation by scholars in relation to the excess arising from this right. From bibliographical and doctrine research, articles and electronic publications, we sought to understand the point of view of the indoctrinators. Therefore, we will use the hypothetical deductive method, based on readings and records of matters relevant to the topic as well as analysis of decisions in order to understand this point of view in specific cases. Given the detailed analysis of the gap in Brazilian legislation regarding the treatment of exculpatory excess in the context of self-defense, the need for express regulations to address situations in which the agent, under the impact of fear, surprise or disturbance of spirit, exceeds legal limits in self-defense. The absence of a clear provision leaves room for interpretations and judgments that, sometimes, disregard the emotional state of the agent at the time of the incident. Therefore, the urgent need to consider not only moderation in the use of defense means is highlighted, but also the analysis of the agent's non-culpability in the face of exceptional circumstances that affect his ability to act in a measured manner. The search for a basis in higher standards, jurisprudence and doctrines emerges as an essential strategy to legally support the defense in these cases, highlighting the indispensability of a legislative review that explicitly contemplates these aspects to ensure justice in the exercise of the right to defense. [resumo fornecido pelo autor]