Limites da retroatividade do Art. 171 §5° do Código Penal à luz da jurisprudência dos tribunais superiores

Abstract

The main objective of this work is to outline the limits of the retroactivity of art. 171 § 5 of the Penal Code, which changed, as a rule, the nature of the criminal action of the crime of embezzlement from an unconditioned public to conditioned to representation, with the introduction of Law No. 13.964/2019, also known as the Anti-Crime Package. For that, firstly, using a deductive method, a study was carried out concerning the concepts and conditions that govern the criminal action, the principles that guide the public criminal action and the difference between the unconditioned action and the one conditioned to representation. Still, it tried to explain about the retroactivity of the penal law that was more beneficial over time, especially in material and mixed laws. Finally, a dialectical analysis of the understanding of the theme by the Supreme Court of Justice and the Supreme Court was carried out. It is pointed out that the nature of the research is qualitative and its result concluded about the need for the STF Plenary to express itself on the subject in order to provide greater legal certainty for it, in addition to the mixed nature of art. 171 § 5 of the CP, as well as the importance of making an extensive interpretation of the legal system and also making use of analogies to interpret it more broadly in order to remedy the gaps left by the legislator.