Revista do Instituto de Ciências Penais

On the theory of objective imputation

Wolfgang Frisch — 2024-04-26

This paper proposes a review of what has come to be known as the theory of objective imputation (objektive Zurechnung), through specialized literature and the main case law in its country of origin. It points out that, despite the notable advances made in relation to result crimes and the bringing together of various criteria that were once dispersed around a single denominator, the two central points of this theory, the creation of an unapproved risk and the materialization of this risk, still lack better systematization and often take on the role of other concepts in the theory of crime, especially that of conduct complying with the crime definition (Tatbestandsmäßiges Verhalten), as well as making inappropriate use of the concept of imputation (Zurechnung).

Dolus eventualis

Günther Jakobs — 2024-04-26

Through the use of specialized literature as well as the main court rulings in the country of origin, this paper offers an analysis of the central components of the theory of intentional danger (Vorsatzgefahr), proposed by the German Criminal Law Professor Ingeborg Puppe, to characterize the cases in which possible dolus is attributed. The cognitive element is analyzed; the competence to assess the known risk; and the content of the intentional danger, as a rational strategy for producing the result. Finally, some considerations are also made about the distinction between dolus directus and dolus eventualis. Although the theory is positively evaluated, some incongruities are pointed out, particularly with regard to the possible reduction of the area of dolus directus.

The alternative intent

Bruno Moura — 2024-08-23

The so-called “alternative intent” (dolus alternativus) is a traditional category of criminal law dogmatics which has gained increasing importance both on a theoretical and practical level, as shown by some criminal court decisions. Starting from an approach to the logical-analytical structure of this concept, the text advances against the hitherto majority opinion, defending the idea that, from a systematic point of view, the alternative intent is not a problem of concurrence of crimes, but (rather) a problem of imputation. On this assumption, is supported a solution which ascribes to the agent only one intent: that one which, in the comparison between the possible perspectives of
attribution of responsibility, corresponds to the most severe ascription.

Reflections on the prohibition of regression (Regreßverbot)

Wagner Marteleto Filho — 2024-08-23

The present article investigates the foundations of the theory of the prohibition of regression, in its classical and contemporary versions. It examines the possibility of imputing, under the title of negligence, a result intentionally caused by a third party, in connection with the initial behavior that created a prohibited risk. The three main conceptions are analyzed, namely, the theory of the breakdown of the causal relationship (which applies the prohibition of regression), the theory of the adequate causal relationship, and the theory of the delimited area of responsibility (both of which reject the prohibition of regression), and a proposed solution is presented, linked to the restrictive concept of perpetrator and the principle of autonomy.