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Qual O Significado De Estrito Cumprimento Do Dever Legal

However, it is commonly accepted that strict compliance with the legal obligation as a ground for exclusion of illegality also extends to the individual when acting in fulfilment of an obligation prescribed by law. In this sense, there is no criminal offence of perjury in the conduct of a lawyer who refuses to testify on facts of which he has become aware in the performance of his duties and which are covered by professional secrecy (Law 8.906/1994 – Statute of the OAB, Art. 2, § 3 and 7, XIX). It would be unreasonable to impose the law on certain persons who commit an act and, at the same time, to subject them to a criminal sanction in the face of compliance with a criminal sanction on the ground that their requirement is an act classified by law as a felony or a criminal offence. If, for example, in Brazil, the use of the death penalty is common, it cannot be the executioner who is responsible for the murders that were finally committed. To consider a legal obligation, it is necessary to come from the law, that is to say from a command of a general nature emanating from a competent public authority, although in a broader sense (simple laws, regulations, decrees, etc.). It deals with the exclusion of illegality, which is underlined both by the marginal title of article 23 of the Criminal Code (“Exclusion of illegality”) and by the wording of the legal provision (“There is no criminal offence”). The legal obligation may also arise from administrative acts, provided that they are of a general nature, since if they are of a specific nature, the Commissioner does not act under the pretext of excluding strict compliance with the legal obligation, but protected by hierarchical obedience (ground for exclusion of misconduct) if the requirements of Article 22 of the Criminal Code are met. According to Professor Rogério Sanches: “Public actors often have to intrude into the privacy of citizens in the exercise of their activities, precisely to ensure compliance with the law. This interference leads to an assault on legal interests such as liberty, physical integrity or life itself. Within acceptable limits, such interference is justified by strict compliance with a legal obligation. The legal provision on this subject is contained in verbis in article 23 of the Criminal Code: strict compliance with the legal obligation is an exclusive cause of the illegality that occurs in the case of public officials (or private agents performing public functions) who, in certain situations, are obliged to violate the legal interest of individuals by introducing a legal obligation. Strict compliance with the legal obligation or the regular exercise of the law are circumstances that justify the conduct practiced, make it compatible with the ordinance and, therefore, prevent the recognition of the criminal practice, thus eliminating the illegality of the conduct in addition to the regular exercise of a right within the limits set by the ordinance. [2] “(…) Strict compliance with legal obligations is not incompatible with other justifications.

Thus, for example, the police officer who injures an offender caught red-handed acts in strict compliance with the legal obligation and in self-defense at a time when there is a necessary and moderate reaction to an unjust attack by the officer.”45 (QUEIROZ, Paulo. Criminal law: general part. 14th ed. Salvador: Juspodivm, 2020. V. 1. p. 374).

Therefore, since it is the legal obligation of the representative to act, he will not be punished for the offence suffered in the exercise of his profession. Hello teachers, can strict compliance with the legal obligation apply to all types of guarantors or only to those who are civil servants? `4. Strict compliance with the legal obligation presupposes at least the existence of an obligation laid down by law. If this is not the case, it is not necessary to mention this exclusion. Strict compliance, on the other hand, is part of the aforementioned discussion of “excess.” In the case of conduct that falls within the exclusion of illegality, it is necessary that the subject has done only what is exactly required by law. If such conduct is typical in the circumstances, it is not illegal because it is in accordance with the law. “…, the representative must be aware (subjective) that he is behaving in the face of a legal obligation.” (CUNHA, Rogério Sanches. Handbook of Criminal Law: General part: Art. 1st to 120th ed. Salvador: Juspodivm, 2020.

p. 341). This is the act performed in accordance with a legal, criminal or non-criminal obligation, even if it prejudices the legal interest of a third party. Different points of the national order show the existence of tasks assigned to certain agents who can configure typical facts in Sissem. For arrest, for example, art. 292 of the Code of Criminal Procedure: “If there is also resistance on the part of third parties to arrest in flagrante delicto or to arrest established by a competent authority, the executor and the persons assisting him may use the necessary means to defend himself or overcome the resistance …” The same applies to the provision of Article 245, §§ 2 and 3 of the Code, which deals with lawful searches and authorises the use of force to comply with the court order. In a State, if the non-performance of the obligation establishes a typical act, its exercise constitutes the opposite (atypical fact). However, if the fulfilment of the obligation allows the typical situation to arise (bodily harm during the execution of an arrest), we take strict compliance with the legal obligation to the exclusion of illegality. (NUCCI, Guilherme de Souza. Handbook of Criminal Law.

16th ed. Rio de Janeiro: Forensics, 2020. pp. 212-213). (Enter in original) III – in strict compliance with the legal obligation or in the regular exercise of the law. “Article 23, III, Part 1 of the Criminal Code: “There is no offence if the official commits the act in strict compliance with the legal obligation”. An example of strict compliance with the legal obligation can be cited as the application of the Institute for the execution of a search warrant, which allows forced entry and entry into the home without the possibility of imposing a sanction, since the conduct has resulted in a legal obligation, in accordance with the requirement provided for in the judicial procedure, which can approve its conduct. The concept of strict compliance with legal obligation is a legal institution that allows a person to commit conduct intended in a criminal style without being held accountable for the consistent application of the sentence contained in the operative part. Under article 23, paragraph one, of the Criminal Code, an officer may be punished for deception if the excess is committed voluntarily; or guilty if the contractor is overwhelmed by recklessness, misconduct and negligence; In the case of causes excluding illegality (distress, self-defence, strict compliance with a legal obligation and regular exercise of a right): the legal obligation is the obligation that necessarily arises directly or indirectly from the law or from a normative act.

This means that the rule imposing the obligation need not necessarily be criminal in nature, but may also be commercial, civil, administrative, etc. “1. It is not possible to plead absolutely guilty to the crime of actual injury if it is established in the trial record that the accused, the military policeman, under the pretext of restraining the offender, who was raised, slapped him three times in the face without the victim making an aggressive gesture.

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