CRIME, DAMAGE REPAIR, FALLACIES AND THE EQUALITY PRINCIPLE: THEMIS CAN USE A SALE, BUT THE JUDGE DOESN'T

Abstract

The penal legislation gives different treatment between the agent who commits theft or misappropriation and that who commits misappropriation against Social Security. Is it an arbitrary and discriminatory distinction? We seek the answer. In this way, we denounce the uncritical and blind attitude called "common sense theory of jurists" wich, more and more, sacralizes higher courts’ judicial precedents, seeing it as epistemological ceilings. Aiming to prove the risk to the legal system to judge by precedentes, we visited the Supreme Court's jurisprudence, in particular the 87.324/SP habeas corpus and the precedents cited therein, noting irreconcilable inconsistencies and fallacies. With the dogma broken, we concluded that the critical stance is the only constitutionally appropriate and that the respect for the equality constitutional principle is given by equating the crimes, with the purpose to extinguish the criminal liability by repairing the damage.