Crimes Against Freedom and Equity: Penal Code Analysis
Crimes Against Freedom and Equity
1. Kidnapping and False Imprisonment (Art. 148 of the Penal Code)
Key Considerations:
- Deprive means to thwart, prevent, or restrict someone’s enjoyment of freedom.
- Deprivation of liberty through kidnapping or false imprisonment must be continuous.
- Kidnapping involves seizing someone from their location to take away their freedom.
- False imprisonment is the unlawful confinement of someone in a particular place.
- This crime violates legal freedom of movement.
- Victim consent does not negate the crime.
- It is aggravated if the perpetrator confines their partner in the couple’s home.
- The victim’s age (over or under 60) is irrelevant for criminal purposes, but the penalty is harsher if the victim is under 18.
- The crime is consummated when the victim’s freedom is curtailed, regardless of the duration.
- If the victim suffers severe physical or mental anguish due to mistreatment or unlawful detention, it constitutes torture.
- Libidinous intent is a qualifying factor for this crime.
2. Conditions Analogous to Slavery (Art. 149 of the Penal Code)
Incorrect statement:
- Forced labor is applied as a penalty, restricting the victim’s right to choose.
Other Considerations:
- Condition analogous to slavery is a normative element of the crime.
- Preventing an employee’s freedom of movement due to debt constitutes this crime.
- Subjecting an employee to degrading working conditions constitutes this crime.
- The crime exists if the victim is under 18 or mentally ill.
3. Violation of Domicile (Art. 150 of the Penal Code)
Considerations:
- Entering another’s residence without permission constitutes this crime.
- Remaining in a residence against the owner’s will after being asked to leave constitutes this crime.
- Invading a shack occupied by a street resident is not a crime.
- Weather, location, use of weapons, or violence are aggravating factors.
- A civil servant acting in an official capacity, even with abuse of power or lack of legal authorization, commits this crime.
- Entering someone’s residence at night to protect them from aggression does not constitute this crime.
4. Theft (Art. 155 of the Penal Code)
Considerations:
- Theft can involve violence or serious threat.
- Theft during nighttime rest is an aggravating factor.
- The stolen item need not have economic value.
- Theft committed by two or more people is qualified theft.
- The subjective element requires animus furandi (intent to steal), even without the intention of keeping the stolen item.
5. Special Aggravating Circumstance of Theft
A special aggravating circumstance is when the theft occurs during nighttime rest.
6. Theft: True or False
- False: Using a toy gun during theft qualifies the crime.
- False: Improper use of weapons like scissors does not qualify the crime of theft.
- True: Theft involving young offenders does not automatically qualify as theft with multiple agents.
- False: If a victim dies from accidental police gunfire during the perpetrator’s escape, only the officer who fired the shot is liable for armed robbery.
- False: Threatening someone after stealing their property unnoticed constitutes robbery.
- True: Theft is only consummated when the perpetrator gains control of the stolen item.
- True: Killing the victim to escape but failing to steal the item constitutes attempted robbery.
- False: In improper theft, violence or serious threat occurs after the theft.
7. Case Studies
- False: Brito commits theft of services, not fraud.
- True: Técio is liable for robbery by threat, not fraud.
- False: Mévio is liable for robbery, not improper theft.
- False: Tadeu is liable for embezzlement, not fraud.
- True: Juvenal is still liable for embezzlement despite compensating the owner.
8. Fraud and Related Crimes
- False: In fraud, the wronged person does not always have to be the same as the victim of the property crime.
- True: A taxi driver overcharging foreign tourists commits fraud.
- True: Making fraudulent phone calls using improperly coupled electronic components constitutes fraud.
- True: Presenting a false list to solicit donations constitutes fraud.
- True: Fraud is consummated when the agent obtains an unfair advantage.
- True: Fraud is a crime of material damage, achieved through deceit.
- True: The material precondition for embezzlement is the agent’s control over the movable property.
- True: In embezzlement, the active subject intends to illegally transfer ownership or possession.
- True: A boarding house owner keeping a resident’s belongings as collateral commits embezzlement.
9. Peter’s Crime
Peter is liable for aiding and abetting theft.
10. John’s Crime
John is liable for receiving stolen goods (receptação), as he bought a gold chain far below its value from a minor, knowing or having reason to suspect it was stolen.
11. Immunity from Criminal Prosecution
Correct Answer: Exemption from punishment is admissible due to the civil relationship between the adoptive parent and child.
12. Legal Considerations
- True: For theft of small value, the judge can reduce the sentence or apply a fine.
- False: In robbery, theft is the primary crime, not murder.
- False: Robbery is consummated with the use of force or threat, not the acquisition of the stolen item.
- False: Extortion through kidnapping is consummated with the deprivation of liberty, not the ransom demand.
- True: Receiving stolen goods is a misdemeanor, except in specific cases.
- True: Influencing a third party to handle stolen goods is improper receiving.
- True: Receiving stolen goods during commercial activity is a felony.
- True: Buying significantly undervalued items without proper documentation constitutes culpable receiving.
- True: In culpable receiving, the judge may grant judicial pardon.
- True: For receiving stolen goods of small value, the judge can reduce the sentence or apply a fine.
- True: The penalty is doubled if the stolen goods belong to a public entity.