prescription consists of loss of the State's right to punish the perpetrator of a crime for his act, as the legal action was not exercised within the legal term stipulated by law. This concept is usually associated with Criminal Law and Civil Law, as a way of regulating the action of justice.
When someone commits an unlawful act that violates the rights of others, there is a period of time, counting from the moment in which the injured individual was aware of his/her right violated, so that justice is triggered in order to punish the alleged offender.
In short, the State, according to the law, must investigate, prosecute, convict and execute a penalty for someone within a previously established period of time. If this time expires and the State is unable to complete the process, without giving reasons for the reason, it will be extinguished the right to punish the individual who was the target of the process.
In Civil Law, as established in article 189 of the Civil Codel and mentioned above, the prescription is configured as the loss of the intention to request an action punitive court of the State when it is requested after a long period of time since the right was violated.
See also the meaning of the Civil right.
penal prescription
Penal prescription can be divided into two main types: prescription of punitive claim (before sentence) and prescription of enforceable claim (after sentence).
In the case of prescription of punitive claim, the statute of limitations depends on the penalty in the abstract (not yet confirmed), that is, taking into account the maximum penalty of the respective crime, as regulated by the article 109 of the Penal Code:
- if the abstract penalty exceeds 12 years, the statute of limitations will occur in 20 years;
- if the penalty is more than 8 years and less than 12, the statute of limitations will occur in 16 years;
- if the penalty is more than 4 years and less than 8, the statute of limitations will be in 12 years;
- if the penalty is more than 2 years and less than 4, the statute of limitations will be in 8 years;
- if the penalty is 1 to 2 years, the statute of limitations will occur in 4 years;
- if the penalty is less than 1 year, the statute of limitations will occur in 3 years.
After the sentence is issued, it may prescribe if there is a delay in the execution of the sentence and if it is in accordance with the conditions provided for in article 110 of the CP: intercurrent prescription and retroactive prescription.
THE intercurrent prescription is based on article 109 of the CP to determine the statute of limitations. In other words, if someone has been sentenced to 2 years, the penalty will expire if more than 8 years have elapsed between the conviction and its final decision.
THE retroactive prescription it acts when there is a final and unappealable decision, taking into account the penalty defined in the sentence to provide for the statute of limitations. Based on the example mentioned above, if 8 years elapse between receipt of the complaint and the final decision, the State loses the right to punish the accused.
According to article 107 of the penal code Brazilian, there are still other situations that can extinguish the punishment:
Art. 107 – Punishment is extinguished:
I – by the agent's death;
II – for amnesty, grace or pardon;
III – by the retroactivity of a law that no longer considers the fact as criminal;
IV – by prescription, decay or peremption;
V – for the waiver of the right to complain or for an accepted pardon, in crimes of private action;
VI – by the withdrawal of the agent, in cases where the law allows it;
VII - (Revoked by Law No. 11.106, of 2005)
VIII - (Revoked by Law No. 11.106, of 2005)
IX – for judicial pardon, in cases provided for by law.
If the conviction is only in fine, it will expire in 2 years, according to article 114 of CP.
Another caveat is that the statute of limitations cut in half if the offending agent, at the time he committed the crime, is under 21 years of age, in accordance with the text provided for in article 115 of the Penal Code.
the prescription does not occur in the following cases:
- between spouses, in the constancy of the conjugal society;
- between ascendants and descendants, during family power;
- between guardians or guardians and their guardians or guardians, during guardianship or guardianship;
- against the incapable (see Civil Disability topic);
- against those absent from the country in public service of the Union, States or Municipalities;
- against those who find themselves serving in the armed forces in time of war;
- action by armed groups against the constitutional order and the democratic rule of law;
- crimes of racism.
Learn more about Criminal Code.
Prescription and Decay
When someone's right is violated, that person's intention to bring to justice is born so that the agent violating the right is punished for such act, in accordance with the law. However, the claim is extinguished by prescription if a certain period of time has passed and its holder has not brought proceedings.
Decadence is often confused with Prescription in Law. The difference lies in the fact that decay represents the extinction of the right after expiry of the period provided for by law, while prescription refers to claim, that is, the power to demand from another person, under court, a provision. In short, Decay is the loss of a right for not exercising it for a certain period of time.
See also the meaning of Preclusion and meet others differences between prescription and decay.