The exclusions of illegality are some hypotheses that allow the practice of an unlawful act is not treated as a crime.
An action that is considered a crime, when performed in a specific situation, may not be treated in this way. This means that if there is one of the excluding causes of unlawfulness, there will be no crime.
To better understand the subject, it is first necessary to know what illegality is. Look:
What is illegality?
Illicitness is an act that goes against the provisions of the law and, as a consequence, causes damage to a property that is protected by law.
For this, it is necessary that the act practiced is provided for in the law as a typified fact. I.e, if the fact is provided for in the legislation, it will be considered a crime.
Unlawful and unlawful exclusions
Knowing the meaning of illegality, it is easier to understand the causes of exclusion of illegality.
The exclusions allow - in specific situations, only those determined by law - a person commit an unlawful act without being considered a crime.
Excluding causes of illegality
The excluding causes of illegality are situations in which the law provides that an act that would be treated as a crime, due to its specific circumstances, will not be treated in this way.
There are three exclusions, which are listed in article 23 of the Penal Code:
Art. 23 - There is no crime when the agent commits the fact:
I - in state of need,
II - in self-defense,
III - in strict compliance with legal duty or in the regular exercise of rights.
Learn a little more about each of these causes.
state of need
The state of need applies to someone who is in a dangerous situation. According to criminal law, the individual who practices a conduct to save yourself from a current danger.
For this condition to be considered, a legal asset protected by law must have been violated so that another asset - also protected by law - can be preserved from harm.
See what article 24 of the Penal Code says:
Art. 24 - It is considered in a state of need those who practice the fact to save from current danger, which did not provoke by their will, nor could he otherwise avoid, his own or another's right, whose sacrifice, under the circumstances, was unreasonable demand yourself.
The application of this exclusion has a requirement: for the situation to be recognized, it is necessary prove that the danger is current. It is essential that the moment of danger is verified, otherwise, the exclusion of illegality cannot be applied.
Example: theft of a car parked on a public road to transport a person at risk of death.
Theft of a car is a crime. But, in this case, and with due proof of the need and danger of the situation, the exclusion of a state of need may be applied.
self defense
Self defense is the use of the means necessary to end an aggression. It happens when a person performs an act that would be a crime, but in the circumstance of self-defense, it will not be treated that way.
It can be considered both in its own defense and in the defense of other people.
It is important to know that the means used in defense must be moderate, that is, just enough for the aggression to be ended.
This exclusion is provided for in article 25 of the Penal Code:
Art. 25 - It is understood in self-defense who, using moderately the necessary means, repels unjust aggression, current or imminent, to his or others' rights.
As with the state of necessity, for legitimate defense to be considered as excluding illegality, the danger must be proven. Furthermore, it is necessary to prove that the aggression is unjust, that is, that there was no provocation for it to happen.
Example: in an assault situation, the victim attacks the assailant to get rid of the situation and get away.
Assault is a criminal offense. In this specific situation, if proven, it can be considered as a cause that excludes the illegality of the act.
Also read the meaning of Crime.
Strict compliance with legal duty or in the regular exercise of rights
In these cases, the exclusion of illegality happens when the act is performed by an individual who fulfills a duty. The most common application is when a person practice a behavior based on his profession..
Thus, conduct that would be a crime, if practiced in professional duty, will not be treated as a crime.
For this, the obligation must be specified in a law. Otherwise, the action may be treated as an unlawful act.
As with other exclusionary causes, it is important that the limits provided for in the law are respected, as excesses in the act may be punished as a crime.
Example: a store security guard who reacts to a firearm robbery.
In this case, as you are fulfilling the duty of protection that the profession requires, the conduct you practice may not be treated as a crime.
See other meanings: culpability, crime theory and typical fact.