The introduction of the plea bargain agreement mechanism in the Brazilian legal system: applying Niklas Lumhmann's systems theory to the analysis of legal predictability in criminal law

• Grant number: 17/19127-1
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Start date: September 01, 2018
• End date: August 31, 2019
• Field of knowledge: Applied Social Sciences - Law
• Principal Investigator: Orlando Villas Bôas Filho
• Grantee: Ayran Oliveira Michelin
• Host Institution: Faculdade de Direito (FD). Universidade Presbiteriana Mackenzie (UPM). Instituto Presbiteriano Mackenzie. São Paulo , SP, Brazil

Abstract

In this research, the authors seek to inquire on the consequences of the enactment of law 12.850/13 on predictability in the Brazilian Criminal Law subsystem, particularly concerning crimes giving rise to the felony of criminal organization. Such crimes have been, since 2013, object to the application of "Colaboração Premiada" mechanism, the Brazilian version of the "cooperation agreement", originated in common law (FINE, 2011).We assume, as a starting point, that Brazilian's legal subsystem, which already suffered from a weak code (VILLAS BÔAS FILHO, 2009) - which is to say that the autopoietic operations performed by the system do not function in terms of a clear and objective (rational) axiological referent, but rather in accordance with circumstantial judgment -, has weakened even further with respect to crimes covered by the "Colaboração Premiada" mechanism, pursuant to art. 4 in Law 12.850/13. With the aforementioned analysis in sight, the research will have as its theoretical tool the second-order observation of (I) the meaningful action theory (VIVES ANTÓN, 2011) and the third pace of criminal law theory (SÁNCHEZ, 2013), aiming to describe, respectively, the charging against a defendant and the polichrony (LUHMANN, 2016) presented by the Brazilian processual law in both legal facts, that is, AP 470 STF and the so-called "Operação Lava-Jato"; as well as of (II) renowned juridical analyses (auto-observation) of (II.1) the process and (II.2) of the records of hearings (communication) pertaining to the trials of José Dirceu de Oliveira e Silva, both before and after the passing of law 12.850/13. Finally, the research seeks to compare the standard systemic predictability seen in both juridical facts anterior and posterior to the institution of Colaboração Premiada. (AU)