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The criminal code in force in Brazil was created by decree-law no. 2,848, of December 7, 1940, by then-President Getúlio Vargas during the Estado Novo period, with Francisco Campos as justice minister. The current code is the 3rd in the history of Brazil and the longest in force, the previous ones were those of 1830 and 1890.

Despite its creation in 1940, the present Code only came into force on January 1, 1942 (article 361).

The Code originated in a project by Alcântara Machado, submitted to the work of a review committee composed of Nelson Hungria, Vieira Braga, Narcélio de Queiroz and Roberto Lira. There are historical references regarding the collaborations of the Minister Antônio José da Costa e Silva and, in the part of the editorial revision, of Abgar Renault, but these were not part of the mentioned commission.

The interpretation of the Penal Code in the light of the Federal Constitution reveals the following basic principles: legality, due process, culpability, lesivity, proportionality, individualization, humanization and social value of the penalty, subsidiarity, fragmentation. Finally, the Brazilian criminal law is a barrier of defense of the individual in the face of the punitive power of the State.

The replacement of the Penal Code was attempted by Decree-Law No. 1,004, dated October 21, 1969, but the criticisms were so great that it was substantially amended by Law No. 6,016 of December 31, 1973. Although several postponements for the beginning of its validity was revoked by Law no. 6,578, of October 11, 1978.

Following the failure of a major revision in the penal system, on November 27, 1980, a commission was established to prepare a draft bill for the reform of the General Part of the Penal Code of 1940. This commission was chaired by Francisco de Assis Toledo and had as its members: Miguel Reale Júnior, Francisco Serrano Neves, René Ariel Dotti, Ricardo Antunes Andreucci, Rogério Lauria Tucci and Helio Fonseca.

From the committee's debates and legislative changes, Law No. 7.209, of July 11, 1984, made the amendments of the General Part, becoming effective six months after the date of publication.

Although it is a relatively long diploma, the Penal Code (fundamental Criminal Law) does not exhaust all criminal matters provided for in Brazilian law. There are an extraordinary number of special criminal laws (Complementary Criminal Law).

Urges to emphasize the last amendment made in the Penal Code, which is the edition of Law 12,015 / 2009, which deals with "sexual crimes". The theme was, for the most part, modified, some crimes being extinguished from the code while with its own typification, such as art. 214, which dealt with the violent indecent assault, which has now been absorbed by the capitulation of the article defining rape.