Análise do instituto da legítima defesa: aplicabilidade do excesso exculpante

Abstract

The State, through its representatives, cannot always guarantee the security of all citizens, allowing them to act in their own defense in certain situations. However, self-defense can be made illegal due to the excess committed by the agent, which can be characterized as exculpatory, if the agent is influenced by emotional aspects and uses it beyond what is necessary to stop the aggression. This paper presents a broad analysis of the legitimate defense institute, discussing the extent of exculpatory excess. For this, psychic concepts were observed, demonstrating the applicability of this institute, especially regarding the influence of the emotional aspect. Jurisprudence decisions were also presented in order to investigate the applicability of the exculpatory excess. It was found that the emotional factor influences human conduct considerably, especially in dangerous situations, which can cause a functional imbalance in the basic structure of the mind, since a large part of the elements that determine the individual's behavior originates in the unconscious. Which brings up the need to discuss the typification of exculpatory excess in the Brazilian legal system, in order to provide greater legal certainty for the magistrate and for those who were unjustly assaulted.