Crimes against the administration – updating and penal reform

For a formal and substantial updating of the chapter on crimes against the Public Administration

Abstract

The meticulous study of crimes against the Public Administration, with typification set between arts. 312 and 359 of the Penal Code, reveals to the interpreter the need to revise Title XI of that Codex. Although the original provisions satisfactorily met the protected legal objectivity (in the words of Magalhães Noronha, "the regular development of the State's activity, within rules of dignity, probity and efficiency"), the changing nature of contemporary society does not dispense with criminal legislation consistent with the new legal commerce and the unprecedented structures of modern administrations. Such modifications in the sphere of being demand, inexorably, adaptations of the immanent ought-to-be, today embodied in a Positive Criminal Law that refers to the reality of 1940. Reforms of a formal and substantial nature, including the introduction of new typical figures, will be welcome, provided they are cautious, so that turmoil is not instigated among legal operators. In the present work, the author examines a good part of the projects that, on the subject, have already been forwarded to the National Congress, launching to public debate his own lege ferenda conclusions and evaluating that any alterations of this order must safeguard, from the formal point of view, legal certainty, and seek, from the substantial point of view, the maximum degree of correspondence with the idea of a Just State, limiting the criminal instance to necessary interventions (Minimal Criminal Law) and preserving human dignity.