O Que É Teoria da Acessoriedade Limitada?


CEBRASPE (2019):

QUESTÃO ERRADA: A teoria da acessoriedade limitada entende que basta o fato principal ser típico para que o partícipe seja punido.

A teoria da acessoriedade limitada determina que, para que o partícipe seja punido, é necessário que o autor tenha praticado fato típico e ilícito.

FGV (2015):

QUESTÃO ERRADA: Na teoria da acessoriedade limitada, somente haverá a punição do partícipe se o autor houver praticado uma conduta que seja típica, ilícita e culpável;

Na teoria da acessoriedade limitada é suficiente, para a punição do partícipe, tenha o autor praticado um FATO TÍPICO e ILÍCITO.

“A doutrina majoritária adota a teoria da acessoriedade limitada, que só pune a participação se o autor tiver praticado uma conduta típica e ilícita (art. 31 do CP). Para que se possa falar em partícipe, necessariamente, deve existir um autor do fato. Sem este, não há possibilidade daquele ser punido, em decorrência da acessoriedade da participação”. MS 0013906-26.2013.4.03.6000 (TRF-3).

CEBRASPE (2018):

QUESTÃO CERTA: Clara, tendo descoberto uma traição amorosa de seu namorado, comentou com sua amiga Aline que tinha a intenção de matá-lo. Aline, então, começou a instigar Clara a consumar o pretendido. Nessa situação, se Clara cometer o crime, Aline poderá responder como partícipe do crime.

Partícipe: É aquele que não tem o poder de decidir como, se, e quando o crime será praticado e também não executa o verbo do tipo penal. O partícipe é o coadjuvante, que não pratica a conduta criminosa, mas colabora nela. Podendo ser de tais maneiras:

Induzimento – é a pessoa que cria a ideia do crime no autor. Este executa a Participação moral.

Instigar – é aquele que reforça a ideia do crime já existente no autor. Este executa a Participação moral também.

Auxílio material – ato de fornecer utensílios para o crime. Ex.: emprestar a arma do crime, é chamado de Participação material.


A participação é um comportamento acessório. Não existe participação sem autoria ou coautoria.

No Brasil, é adotada a Teoria da Acessoriedade Média/Limitada: o partícipe será punido se a conduta do autor for um fato típico e ilícito, ainda que não culpável.

Outra explicação:

PARTICIPAÇÃO – espécie de concurso de pessoas na qual o agente colabora para a infração, mas não pratica a conduta descrita no núcleo do tipo penal.

Moral – é aquela na qual o agente não ajuda materialmente, mas instiga ou induz;

Material – partícipe presta auxílio, fornecendo o objeto ou ajudando na fuga (chamada cumplicidade);

O agente que empresta arma para que outro mate alguém, não praticou a conduta nuclear (matar), não existindo adequação típica imediata. Mas, a punibilidade é possível pela norma de extensão da adequação típica (CP, art. 29), que abarca aqueles que contribuíram para o delito (adequação típica mediata).

A lei admite a redução da pena de 1/6 a 1/3 se a participação é de menor importância (art. 29, § 1º do CP). Isto não se aplica às hipótese de coautoria, apenas à participação;

É POSSÍVEL PARTICIPAÇÃO EM CADEIA, ou seja, A empresta arma para que B empreste para C cometer crime. A e B são partícipes.


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