HOMICÍDIO FUNCIONAL: A (DES) IGUALDADE ENTRE FILHOS ADOTIVOS E CONSANGÚINEOS TRAZIDOS PELO CÓDIGO PENAL E A (IN) CONSTITUCIONALIDADE DA LEI 13.142/15

Abstract

This study's main focus is to examine the possibility of recognizing the adopted child as a passive subject in the crime provided for in article 121, § 2, item VII, of the Penal Code, which addresses the qualification of functional homicide. This qualifier, established by Law No. 13,142, of July 6, 2015, raises questions about its compatibility with the precepts established in the Federal Constitution of 1988. Furthermore, the objective is to investigate the interpretation of legal norms from the perspective of fundamental principles, such as the principle of legality, which guides Criminal Law, and the principle of equality, guaranteed by the Constitution and which prevents any distinction between biological and adopted children. In this context, we seek to determine whether the exclusion of adopted and socio-affective children from criminal protection in the context of functional homicide represents a significant violation of these principles. Throughout the text, various doctrinal positions on the subject will be explored, with the purpose of determining the legal feasibility of including adopted children as passive subjects in the classification of functional homicide.