Legal Concepts of Duty of Care and Abortion
There is a worthlessness of action (breach of a duty of care). Here comes the guilt sensu assumptions or requirements:
- Breach of a duty of care: This duty stems from the law, technical standards, or norms of social conduct (customary law).
- Death Result: If no results were not the kind or an attempted.
- Predictability objective: Chamber of probability, which is performed by a third hypothetical observer. Chamber of reality. Exclusive Pleas: If circumstances and force-maior.
- Unpredictability of Income: It is subjective. In general, the agent who commits manslaughter does not foresee the result. Exception: guilt or conscious prediction. Both provide the result. In conscious guilt because of the risk allowed, makes the prediction, but does not allow the result. In any misconduct, the subject consents. If you kill, killed. It adopts the theory of consent in both cases.
Legal Concept of ways to indicate the failure of duty of care
- Negligence: failure to the technical rules of duty of care. It no longer satisfies the obligation to cuidado.
- Recklessness: Excess, goes beyond what the rule allows extrapolating the normas.
- Malpractice: Lack of skills, preparation técnico
Obs: Failure of the three concepts above violates the duty of care. With regard to traffic crimes, should be observed traffic law, where the penalty is greater.
Article 123
It is a crime itself. The agent must be the mother and special taxpayer is the newborn. There is a bipolarity and thus the crime itself is bi.- Personal circumstances of the active agent: puerperium. Some say it is a privileged homicide .- Sufficient time: during or shortly after birth. Soon after refers to the situation immediately. If you spend a considerable amount of time (without his wife were in the puerperium), there is a third .- Having the participation of infanticide in the state of the puerperal mother agent also account for infanticide
Abortion by the pregnant woman or her consent
Art. 124 Legal Objectivity:
intrauterine life: the embryo or fetus active agent: crime itself. This crime only allowed to participate, not the co-authors, since participation may be an inducement to the victim to perform the abortion. People do not realize that induce abortion and therefore does not make up the execution of the crime. Participation takes place as art. 30 of CP.Pode be attempted? Yes you can, because it is a crime and attempt material.Consumação: Burn to death of the embryo or fetus and should be a causal link between the conduct and resultado.Exemplo: early pregnancy, in which is given a drug to cause a and abortion, however, the child is born early and died at a later date. There was a murder or crime of abortion? It is the time of the crime: Article 4 – It is a crime committed when the act or omission, even if another is the time of the result. Therefore, if the cause was the abortifacient drug, is the crime of abortion. If you do not reach the victim’s death, we can characterize the attempt.
Abortion by terceiro
Art. 125
Legal Objectivity: the embryo or fetus. Bodily integrity of gestante.Ação typical: cause: to causa.É common crime. Subjective element: the conscious will to do the resultado.Não is the typical form abortion manslaughter, but only with serious bodily injury resulting from abortion is provided for in art. 129.
Article 126
presents a procedure necessary. There is bilateral. It is a type of misconduct same legal objectivity. The difference is that there is consent of the pregnant woman and the third is who does the abortamento.Necessarily, a woman needs the capacity to consent. If you do not have the capacity to consent, apply the provisions of art. 125, because there is a presumption of consent, as indicated in paragraph one of this art. 126.
Qualificada
Art Form.127
Preterdolosos The crimes are investigated by the subjective element. The death takes the blame for the result one is abortion, described the resulting death.