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Brazilian Law X American Law

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ORIGINAL ARTICLE

MACHADO, Daniel Dias [1]

MACHADO, Daniel Dias. Brazilian Law X American Law. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 06, Ed. 03, Vol. 14, pp. 98-104. March 2021. ISSN: 2448-0959, Access link: https://www.nucleodoconhecimento.com.br/law/american-law

ABSTRACT

The present work seeks throughout its topics to promote a verification of the law applied to Brazilian and American society, consolidating which aspects are presented in divergent or similar ways. The general objective is to highlight the points of constitution of Brazilian and American law, regarding secondary objectives, which consist of: highlighting the characteristics of common law, presenting the development of criminal proceedings under Brazilian law, highlighting the bases for the constitution of the law with the two countries. For a better foundation of the contents presented, a bibliographic research was carried out, presenting the concepts and analysis of renowned authors in the legal field, increasingly consolidating the importance or relevance of the research presented.

Keywords: Law, Brazilian, American.

1. INTRODUCTION

Law can be considered one of the fields most analyzed and studied over the years, seeking to understand the contexts and bases for its development with society. Analyzing Brazilian law, it can be seen that it has a relationship with some processes of American law.

The present work seeks throughout its topics to promote an understanding of the aspects presented by Brazilian law in relation to American law, promoting a verification of the most similar and divergent aspects among them.

The general objective of the work is to highlight the points of constitution of Brazilian and American law, regarding secondary objectives, which consist of: highlighting the characteristics of common law, presenting the development of criminal proceedings with Brazilian law, highlighting the bases for the constitution of the law with the two countries.

In the process of development of the work, a bibliographical research was carried out, presenting the main concepts, analyses and observations about the evolution and application of law with Brazilian and American society. As well, consolidating how common law has become important in the development of the law applied together with American social routines.

2. THEORETICAL REFERENCE

2.1 BRAZILIAN LAW

For life in society to be harmonious, there is a latent need for norms that discipline interpersonal relationships, and that are present daily in people’s lives. Thus, according to Lopes Júnior (2017) criminal law arises, precisely as a means of maintaining social life, and protecting fundamental legal assets, such as life, freedom and dignity.

In this sense, the author Jardim (1992, p. 01) mentions that “thus, like law, the State is a creation of man, being eminently social. The State is a necessary and natural institution, an instrument used by man to achieve purposes of his interest, at a certain stage of the civilizing process.” Succinctly, the author is referring to the fact that the state arises for man, not the other way around.

Thus, criminal law is the branch of law that aims to typify the conducts that most grieve the legal assets protected for society. Thus, the primary objective of criminal law is to satisfy the public interest and maintain the preservation of social peace.

The branches of law, are guided by principles, and criminal law has as one of its most latent principles the reference to minimum intervention, which according to Greco (2015) deals with the possibility of criminal application, only when it is noticeable that the other branches of law have failed to succeed in protecting legal assets that are prominent to the maintenance of society in social peace.

2.1.1 PROSECUTION UNDER BRAZILIAN LAW

Criminal proceedings, according to CRFB/88, art. 5, item XXXV, is a right that concerns, “the law will not exclude from the assessment of the judiciary injury or threat to the right”. Therefore, the right of action is a constitutional right, through which, according to Suxberger (2018), criminal proceedings are instituted. And it adds that the right to criminal action is “[…] instrumentally connected to a concrete situation, that is, a certain claim (in the extracriminal field) or a socially relevant interest (in the criminal sphere)”.

According to Pacelli (2015) the prosecution will become a criminal action, when it meets the following mandatory requirements:

a) Interest to Act;

b) Legitimacy and

(c) legal possibility of the application.

Within the criminal scope, the interest to act is related to the concern, according to the author, that the criminal process is in fact effective, useful and able to carry out the various scopes of jurisdiction. Thus, in order for the proceedings to be initiated, a minimum of viability of the future claim must be observed.

The current legal system adopts the so-called accusatory criminal procedural system. Thus, according to Alves (2018) the process can be initiated by the Public Prosecutor’s Office, or by the private, depending on the analysis of the case. Thus, criminal actions are divided between public actions and private actions, “The criterion of attribution of active legitimation for criminal prosecution, is to say, the criterion for defining the nature of the action, whether public or private, stems from law” (PACELLI, 2015, p. 130).

The prosecution, according to Pacelli (2015) is still divided into: a) unconditioned public prosecution and; b) conditional public prosecution. On the other hand, private prosecution is subdivided into: a) exclusive private prosecution; b) personal private prosecution and; c) private prosecution subsidiary of the public.

2.2 AMERICAN LAW

The origin of the institute provided for in Art. 76 of Law 9,099/95 is Anglo Saxon Law, also known as common law. Named in the United States of America as a plea bargain, the transaction reaches a wider spectrum in the solution of the criminal proceedings of that country, since before the U.S. courts, 90% of criminal cases are solved with the application of the institute, in order to transform the famous media judgments represented in the films and television into an exception, as a way to solve the criminal case.

According to Almeida (2012) one of the main procedures applied to American law is common law, which highlights some principles and values to be observed in the process of developing laws or norms applied to society. Thus, individuals begin to better understand the procedures applied together with their routines and the importance of such posture with societies.

Common Law can be termed as an impactful and important law system, and is applied in more than 54 countries around the world. Something that consolidates how their vision and methodology of development becomes applicable and aligned with various social realities, noting that many countries present a cultural or even social diversity in their formation (SOARES, 2000).

In Common Law, before a legalization of the lide, there is a phase of communication between the lawyers of the parties. This communication involves exposing their claims and even the indications of the evidence they have or that will be produced, which allows the distancing of risks by prosecutors, before going to court to finance an exhausting, time-consuming and expensive process. Because of this fate, many agreements end up being signed out of court.

Juridicization of the lide, a phase of communication between the lawyers of the parties is evidenced, through which they expose their claims and even indicate the evidence they have or will produce, which allows a summing of risks by the prosecutors, before going to court to afford an expensive, exhausting and time-consuming process. Of course, many agreements end up being signed out of court.

3. CONCLUSION

The development of American and Brazilian law presents some similarities and differences, one of the most impactful the common law view, something that granted American law a differentiated application and more focused on cultural and social issues, something that does not yet occur with the Brazilian legal processes.

It is concluded in view of the data and contents exposed that the common law system is one of the main jurisprudential systems applied to the American environment, granting an overview of the posture, measures and procedures that must be performed throughout a legal process. As well as, it highlights the aspects that will guide all the behavior of professionals or those responsible for the legal procedure with society.

REFERENCES

ALMEIDA, Sidney Silva de. O Supremo Tribunal Federal e os efeitos de suas decisões no controle difuso de constitucionalidade. Revista da Esmese, Aracaju, n.16, p.91-150, 2012.

ALVES, Jamil Chaim. Justiça Consensual e Plea Bargaining. In: CUNHA, Rogério; BARROS, Francisco Dirceu;  OUZA, Renee do Ó; CABRAL, Rodrigo Leite Ferreira (Org.). Acordo de Não Persecução Penal: Resolução 181/2017 do CNMP, com as alterações feitas pela Res. 183/2018. 2ª edição revista, ampliada e atualizada. Salvador: Juspodvim, 2018.

GRECO, Rogério. Curso de Direito Penal. Parte Geral. Volume I. 17ª edição revista, ampliada e atualizada. Niterói: Impetus, 2015.

JARDIM, Afrânio Silva. Direito Processual Penal. 4ª edição revista e atualizada de acordo com a Constituição de 1988. Rio de Janeiro: Forense, 1992.

LOPES JUNIOR, Aury. Direito Processual Penal. 14ª edição revista e atualizada. São Paulo: Saraiva, 2017.

PACELLI, Eugênio. Curso de Processo Penal. 19ª edição revista e atualizada. São Paulo: Atlas, 2015.

SOARES, Guido Fernandes Silva. Common Law: introdução ao Direito dos EUA. 2. ed. São Paulo: Revista dos Tribunais, 2000, p. 86.

SUXBERGER, Antonio Henrique Graciano. O Acordo de Não Persecução Penal: reflexão a partir da inafastabilidade da tutela jurisdicional. In: CUNHA, Rogério; BARROS, Francisco Dirceu; SOUZA, Renee do Ó; CABRAL, Rodrigo Leite Ferreira (Org.). Acordo de não persecução penal: Resolução 181/2017 do CNMP, com as alterações feitas pela Res. 183/2018. 2ª edição revista, ampliada e atualizada. Salvador: Juspodvim, 2018.

[1] Bachelor in Psychology with a focus on Clinical and Hospital Psychology, from the Faculdade de Administração, Ciências, Education and Letters, Bachelor in Biological Sciences (Medical Modality) graduated from the Instituto de Ensino Superior de Minas Gerais, Bachelor in Biomedicine from the Centro Universitário ETEP. Postgraduate degree in Aesthetic Biomedicine held at the Faculdade de Tecnologia e Ciência do Alto Paranaíba, Master’s student in Orofacial Harmonization in progress at Faculdade São Leopoldo Mandic.

Submitted: January, 2021.

Approved: March, 2021.

5/5 - (1 vote)
Daniel Dias Machado

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