THE SUBSIDIARITY OF THE CRIME OF PREVENTING OR HARDING THE NATURAL REGENERATION OF FORESTS AND OTHER FORMS OF VEGETATION

Abstract

In Chapter VI, the 1988 Major Charter dealt with the environment, bringing several protective norms and determining obligations of the Public Power and the community to protect it. The § 3, of article 225, of the Federal Constitution, defined the triple responsibility of the environmental degrader, that is the harmful conduct may be investigated and sanctioned in the civil, administrative and criminal spheres. The aforementioned device is an express criminalization warrant, leaving no option for the legislator but to criminalize the action that violates the fundamental right to enjoy the ecologically balanced environment. In this scenario, Law No. 9,605/1998 emerged in the Brazilian legal system in order to provide, in a more specific way, about environmental protection in the administrative and criminal spheres. This legislation is routinely criticized, either because it contains in its text several blank penal rules, which depend on editing other rules so that there is completeness in the penal type, as well as the use of technical writing, which aims to encompass the peculiarities of environmental protection. In article 48 of the aforementioned law, the crime of preventing or hindering the natural regeneration of forests and other forms of vegetation was typified, which is classified as a subsidiary application and aims to protect the flora when there is no other device that frames the unlawful conduct as typical and is the object of this study.