PENAL ATYPICITY OF ILLEGAL PRACTICES IN BRAZILIAN'S PROCESS OF CHOOSING TUTELARY COUNSELORS

LAW GAP TO BE OVERCOME

Abstract

This article aims to analyze the absence of penalties for illicit conduct committed during the selection process for tutelary counselors (art. 139, § 3 of Brazilian Law n. 8.069/1990). In this attempt, it is observed, from a bibliographic and documentary research, that this legislative gap is incompatible with the relevance of the choice process for the composition of the Tutelary Councils and legal assets involved, such as honesty, ethics, fairness and equal conditions among the participants. Thus, the legal nature of the said device arises as a research problem, as there is no criminal sanction – secondary precept – for the prescribed negative imperative, therefore, it is not an incriminating criminal norm. Thus, the study finds that this penal atipicity of practices that constitute authentic acts of corruption in the scope of the selection process for tutelary counselors difficult the norm's efficacy, which requires a legislative reform that institutes a criminal sanction, due to its punitive and preventive functions and the relevant juridical goods involved.