A SITUAÇÃO JURÍDICA DO FILHO ADOTIVO NO CRIME DE HOMICÍDIO FUNCIONAL

Abstract

The objective of this work is to analyze the legal situation of the adopted child by the agents and authorities described in arts. 142 and 144 of the Federal Constitution, in view of the crime of functional homicide. The research problem concerns the possibility of adopted child appearing as a passive subject in the qualification provided for in art. 121, §2, item VII of the Penal Code. To develop this research, deductive methodology was used, extracting information and theories about the problem to analyze and reach a conclusion. According to bibliographical research, it was possible to verify the collision between the principles of equality and legality and the possible violation of a constitutional precept. The issue has not yet reached the courts, but the doctrine states that an extensive interpretation with the aim of including the adopted son in the list of victims of functional homicide would become an in malam partem analogy, which is prohibited by criminal law. The objective of this research is to demonstrate the conflict of this qualification with what is determined by the Constitution, making it necessary to control its constitutionality, so that it can be ratified by the Federal Supreme Court.