Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 65º CPP – Res judicata in civil.

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Art. 65. The criminal sentence that recognizes that the act was performed in a state of necessity, in self-defence, in strict compliance with a legal duty or in the regular exercise of the law, becomes res judicata in civil matters.

What does res judicata in civil

Excluding illegality recognized in the criminal sentence:  From the point of view of its structure, the offense is the typical, illegal and culpable fact. Antijuridicity is the contrariety of the action with the law, it is the opposition between the fact and the law. There are causes that exclude anti-juridicity. They are the state of necessity, self-defense, strict compliance with legal duty and the regular exercise of rights ( Article 23 of the Penal Code). Killing someone is a crime. Killing someone in self-defense is not. It is not, because self-defense excludes anti-juridicity, it excludes opposition to the right of the action of killing someone. All this said in the criminal area. Let’s go to the civil area. Article 65, now being examined, expresses that the exclusions of anti-legality are res judicata in civil cases. In this area, in civil matters, Article 188 of the Civil Code states that “ the following do not constitute unlawful acts: I – those committed in legitimate defense or in the regular exercise of a recognized right; II – the deterioration or destruction of someone else’s thing, or injury to a person, in order to remove imminent danger. Single paragraph. In the case of item II, the act will be legitimate only when the circumstances make it absolutely necessary, not exceeding the limits of what is indispensable for removing the danger”. Once it is recognized in the criminal proceedings that the act was performed with an exclusionary conformation of anti-legality, this declaration becomes res judicata in civil cases, where there is no question of an illegal act.

Culpability exclusions:  Irresistible moral coercion ( article 22 of the CP ), hierarchical obedience (article 22 of the CP), excusable prohibition error (article 21 of the CP), unenforceability of different conduct and fortuitous drunkenness (article 28 , paragraph 1 of the CP ), non-accountability due to mental illness or incomplete or retarded mental development ( article 26,  caput )  and minors ( article 27 of the CP ). There is no res judicata in civil proceedings to recognize the absence of guilt in criminal proceedings.

Putative legitimate defense: It is discussed in the doctrine whether or not there is malice in the putative self-defense, whether the error is of type or of prohibition. We prefer to leave these debates to the penalists. It is important that, of course, putative legitimate defense does not exclude unlawfulness. Therefore, the recognition of it, in the criminal sentence, does not prevent the repair of the damage in the civil action. Those who defend themselves by “assuming” an aggression may thus have acted more on internal psychic factors than on the actual behavior of the victim. Or not. The victim may have given effective cause to the reaction. There are faults in this game to be examined and weighed. It could be the sole fault of one or the other. It could even be both, and, in this case, the blame would be compensated. What can be fully justifiable in the criminal field, considering the internal context of the psyche of the one who acts assuming an aggression, it is not always the case in civil court. These are the reasons, therefore, why putative self-defense is not res judicata. The guilt of the accused, as well as that of the one he supposed the aggressor, who suffered the damage (plaintiff of the civil action), will be examined in the civil court.

Destruction of someone else’s thing or injury to a person:  The deterioration or destruction of someone else’s thing, or injury to a person, in order to remove imminent danger ( article 188, item II, of the CC ) does not constitute unlawful acts. However, if the injured person or the owner of the thing are not guilty of the danger, they will be entitled to compensation for the damage they suffered ( article 929 of the CC ). If the danger occurs due to the fault of a third party, the author of the damage will have a regressive action against him in order to have the amount he has reimbursed to the injured party ( article 930 of the CC ). In other words, if someone, acting in self-defense, injures a third party by mistake, he has to repair the damage, however he has regressive action against the aggressor. It is the same solution for the case of action in a state of necessity.


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