The dialogue of sources between civil and military criminal law in the crime of theft and theft for use

Abstract

The Superior Tribunal de Justiça, by the Precedent’s System, used the theory of apprehensio for characterize the consummation of the crime of theft. It brought some problems, because that same court understands that there is a special subjective element of the unjust in those crimes, namely: the animus furandi. Using this theory, the Superior Tribunal Militar uses an objective criterion to rule out the theft for use (Art. 241, of the Código Penal Militar) and classify the conduct as a simple theft consummated crime, using the parameter, for example, of the restitution of the thing with damages. To face the problem of using an objective criterion in the assessment of a subjective element (to avoid the objective criminal responsibility), this article proposes, by the Dialogue of Sources, the use of the concepts of possession and detention of Civil Law, to resolve the typical subsumption in theft and theft for use actions (Art. 240 and 241, of the CPM), removing the presumption of a special subjective element of unjust, which the courts supposes that is implicit in the type. In this sense, we tried to bring a more objective and ontological subsumption of the action to the crime of theft, by natural dolus, using, for this, the dialogue of the sources.