CRIMINAL LAW

INTERPRETATION OF CRIMINAL LAW

Interpreting is a cognitive activity. The act of legal interpretation is engaged in the knowledge of the precise meaning of the standard.

The art. 4 of the introduction of laws to the Brazilian law defines: "When the law is silent the judge will decide the case according to the analogy, custom and general principles of law. "The analogy, customs and general principles of law, are the mediate formal sources used for the right interpretation of the law (immediate formal source) when missing or insufficient to judge the case.

Analogy is to be applied to a situation not regulated by law provision for a similar case. (CAPEZ) ¹, or use the nearest standard applicable to the case. Ex .; application of art. 128, II, of the Penal Code for abortion in the event of pregnancy due to indecent assault. The broad interpretation, however, that regulates the standard has possibility but is not effective. After a sequence of causes, the law applies in its intended genérica² disposal (there is a standard regulating the hypothesis) ie analog interpretation. Unlike analogia³ and extensive interpretation.

Analogy incriminating criminal standard: the application of this analogy offends the principle of legal reserve because typifies a fact not defined by law as a crime Ex .: use of Theft (mobile thing subtraction others to use), under analogous application of Art. 155 of the Criminal Code (subtract mobile alien thing with definitive assenhoreamento mind). In this case, a fact not considered criminal by law would be, in clear affront to the constitutional principle of art. 5, XXXIX (legal reserve).

• The interpretation on the subject can be:

a) Authentic: It is the interpretation made by the appropriate body that drafted the interpretive rule, can be contextual: it is one that the legislature is in the law text itself, it can also be given by another law, for further editing (non-contextual authentic). It's the only interpretation required.