The creative function of the criminal sentence

Authors

  • Sérgio de Oliveira Médici

Keywords:

Judicial creation, Criminal sentence, Animal lottery, Petty crime, Insignificance principle

Abstract

The article examines the creative function of the criminal sentence, demonstrating that every judicial decision constitutes creation, given the insufficiency of the law to cover all facts. It analyzes the limits of creativity, established by due process and the principle of legality, and presents three examples from Brazilian jurisprudence: the recognition of impunity for the animal lottery (later overcome), acquittal in injuries between spouses to preserve family harmony, and the application of the insignificance principle to petty crimes. It concludes that judicial creation, although necessary, must meet legitimate social aspirations and respect constitutional guarantees.

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Author Biography

Sérgio de Oliveira Médici

Procurador de Justiça do Estado de São Paulo e Professor de Direito Penal em Araraquara (SP).

References

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Published

1994-01-01

How to Cite

MÉDICI, Sérgio de Oliveira. The creative function of the criminal sentence. Brazilian Journal of Criminal Science, São Paulo, v. 5, n. 5, p. 127–136, 1994. Disponível em: https://publicacoes.ibccrim.org.br/index.php/RBCCRIM/article/view/3291. Acesso em: 20 oct. 2026.

Issue

Section

National Doctrine
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