THE LEGITIMITY OF ABSTRACT DANGER CRIMES IN ACCORDANCE WITH THE OFFENSIVE PRINCIPLE ; A legitimidade dos crimes de perigo abstrato em face do princípio da ofensividade

The present work, produced from the logical-deductive method based on a bibliographic review by national and foreign authors, seeks to study crimes of abstract danger and their potential compatibility with the Brazilian Constitution, especially in view of the principle of offense (or injury). The current society, conceptualized as a risk society, demands more and more active manifestation by the State to regulate and avoid activities potentially harmful to diffuse goods. In other words, to discipline the risks arising from social interaction. The legislator started to use criminal types of concrete danger in addition to criminal types of damage. With the increasing risks of activities that can affect the environment or even generate mass destruction (nuclear activity, for example), the State further anticipated criminal protection and created crimes of abstract danger. There is a need to establish an objective criterion to establish the limit of legitimacy for the creation of crimes of abstract danger. The tested and confirmed proposal was to recognize the constitutionality of abstract danger crimes, if they observe the precautionary principle. That is, the use of crimes of abstract danger is only justified when the protected legal object is of great relevance and attracts the incidence of the precautionary principle. In this context, the criminal anticipation promoted by crimes of abstract danger is legitimate. This is because the creation of crimes of abstract danger based on the precautionary principle conflicts with the principle of offensiveness, which prevents the creation of criminal types that do not imply violation of legal property. However, given the relevance of certain legal assets, it is possible to use the principle harmonization technique, in order to reduce the scope of the offensive principles so that, in certain cases (such as the protection of diffuse assets) there is a joint incidence of the precautionary principle, to anticipate the penal incidence for a moment prior to the actual violation ...