A culpabilidade como pressuposto do ilícito penal: considerações sobre a dissolução das fronteiras entre o ilícito e a culpabilidade

The present article intends to argue the normative correctness of the strict separation between the wrongdoing and the culpability. The arguments that demand separation are critically analyzed, especially those based on: a) the perspective of the offended and as also on his right of defense in relation of a non-culpable offense; b) the necessity to punish the accomplice of a typical and illicit act (which would not be achieved with an intrinsically culpable wrongdoing); and c) the need to ensure an objective reference object for the mistake of law. Then, based on nomotheoretical premises (= only those who have the competence to do so can argue the norm; the extent of the behavior’s norm and guarantee’s norm are distinguished etc.) and, above all, with a view to the specific function of Criminal Law (considered, here, as the protection of the norm and the reaction to the denial of its validity), it is argued that there are good reasons for the dissolution of the boundaries between wrongdoing and culpability, with consequences particularly relevant to the level of “dolus” and mistake, which are now examined in accordance with the responsibility principle