O Que É Excludente de Tipicidade? (com exemplos)

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Última Atualização 21 de dezembro de 2020

QUESTÃO CERTA: No que concerne aos elementos do crime, é correto afirmar que: o consentimento do ofendido pode conduzir à exclusão da tipicidade.

O consentimento do ofendido pode ser uma CAUSA SUPRALEGAL DE EXCLUSÃO DA TIPICIDADE quando o tipo penal exige o dissenso da vítima. Ex.: na violação de domicílio (art. 150) e no estupro (art. 213), o consentimento do ofendido exclui o próprio tipo, e não a ilicitude. Fora essas hipóteses o consentimento do ofendido pode ser uma CAUSA SUPRALEGAL DE EXCLUSÃO DA ILICITUDE se praticado em SITUAÇÃO JUSTIFICANTE. Ex.: aquele que realiza tatuagens no corpo de terceiros pratica conduta típica de lesões corporais (art. 129 do CP), muito embora lícita, se verificado o consentimento do ofendido; aquele que inutiliza coisa de terceiro, ainda que a pedido deste, pratica conduta típica de dano (art. 163 do CP), muito embora lícita, se presente o consentimento da vítima.

O consentimento ora exclui a ilicitude, ora exclui a tipicidade. Como diz a questão “pode” excluir a tipicidade.

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