Criminal Law: Understanding Intent, Guilt, and Punishment

Posted on Dec 13, 2024 in Law & Jurisprudence

Operating System Adequacy of Penalties in Case of Repeated Fraud

Article 164 COT: When various convictions were given against the same defendant, courts enacted after the first failures may not consider altering circumstances that have accumulated in processes they have not been able to take into account. They must also adjust the penalty so that the range of penalties cannot exceed that which would have corresponded had the crimes been deemed together. Where the preceding paragraph applies, the court prescribed by the subsequent failure shall modify, ex officio or at the request of the affected, in order to adapt to the provisions therein.

Three Aspects to Consider:

a) The following decisions may not consider altering circumstances of responsibility which have not been able to take into account a cumulative process (if one has been able to accumulate both processes and, it is not possible to apply summary procedure, it would not be eligible for the mitigation of 11 No. 9 which, in the retrial was upheld only because it is an abbreviated procedure)…
b) The penalty at the retrial over the death of the first trial (in a mental exercise) cannot exceed as a whole, the penalty would correspond if it was judged all the facts in a single process (there will be two penalties, one for the first trial and another for further processing)…
c) The court makes the following ruling is entitled to adapting to modify the sentence so that coupled with the first process, not to exceed the penalty that would have been appropriate if it were a single process (to be modified to adapt, only the second part).

Application of These Rules Would Apply in a Case of Several Scams:

A) Penalty in the second trial (first trial sentenced to prison greater minimum):

CP 468.467 legal penalty: Imprisonment in its maximum degree
Reiteration of the 351 increases CPP: 1 or 2 degrees (minimum grade to medium grade)
11 No. 6 and No. 9 CP 11: 1 degree lower (more imprisonment minimum grade: 67 inc.4 CP is optional for lower, 69 poorly produced extension 40 people, amounts…)

B) Penalty in a cumulative process:

Legal penalty of 468, 467 CP: Presidio less than
Reiteration of 351 CPP: Is increased by 2 degrees (42 scams consummated, 1 attempted)
11 N° 6 offset 12 N° 7 CP
11 N° 9 unenforceable because it is in summary proceedings (407 inc. 3 CPP)
Without modifying circumstances: Most average prison

Therefore, the penalty in the second trial, in prison to a greater degree in the minimum degree (5 years and 1 day to 10 years, applied to the maximum extent -10, by the extent of the evil, 42 people in most old-NOT EXCEED the penalty that would apply if one has been substantiated by all the illegal process.

The exercise required by Article 164 of the COT is to adapt the penalty in the second process so that added to the penalty imposed in the first trial, not exceeding that resulting if it has been tried all offenses in a single cause, the legislature does not require penalties unify as in the prior art. 160 (now repealed by Act 19708 of 2001; there if that is required to unify the penalties) where necessary accumulation. Today, there is accumulation procedurally, then these are two distinct processes must be completed by different sentences, each with the corresponding penalty, upon the adequacy of the penalty in the second process, in the manner described.

Purpose and Function of Criminal Law in the Distinction Between Conditional Intent and Conscious Guilt

Vivian R. Bullemore G.*, John R. R. MacKinnon**

Contents:

The Purpose and Function of the Criminal Law
Role of Criminal Law and Theories of Punishment
The Central Element of the Subjective Type of Intentional Commission of Crimes: Fraud
Adequacy of Typical Intentional Crimes Commission
Criteria for Distinguishing Between Possible Malice and Conscious Guilt
The Problem
Adapting the Concepts of Order and Function to Solve the Problems
Criteria for a Solution: The Distinction Between Impairment of Value of Action and Impairment of Value of Output

Introduction

To refer to a matter under the heading, we must first refer to the problems of order and function of criminal law and punishment, and then outline the systematic aspects of the subjective type of intentional crime committed and, with a little more detail, a typical alignment of intentional crimes, in general. Then we turn to the review of the elements necessary to make distinctions that we offer a solution.

The End and the Role of Criminal Law¹

Criminal law, not disputed in the doctrine, seeks an end to protection even though there is no consensus on the question of what must be protected. We discuss whether the purpose of criminal law is to protect legal rights or protection (of force) of the legal system. However, it should be recognized that this approach provides nuances. Thus there is a doctrinal sector considers that criminal law aims at protecting fundamental legal rights and protection as a secondary purpose of the enforcement of the rule, as the teacher holds the Autonomous University of Madrid, Rafael Alcácer Guirao², and another important doctrinal sector also believes that aims to protect legal goods mediately, “in the immediate protection of the legal system that operates in terms of average length, as suggested by Hans Welzel³.

To understand these concepts, we must make some preliminary distinctions. When we refer to the end of the criminal law understand that we answer to the question of why they should be punished, or why there should be punishment. That is, we refer to the word order to indicate regulatory purposes, as distinguished from explanatory purposes. For them, rather respond to the question of what punishment or why there is a penalty, ie, historical or sociological issues, we use the word function. This distinction, which avoids falling into the confusion between being and ought to be criminal law and punishment, we can distinguish an empirical issue or event (function) of an axiological (end). This distinguished the doctrines of justification (the end) of the theories of explanation (function) within the meaning ascribed Ferrajoli⁴, criticizing the usual confusion of the doctrine when addressing these issues. So we understand that many times, when the doctrine speaks of the end of the criminal law, they are referring to its functions, and vice versa. For example, who argue sociological theories of punishment, presenting as doctrines of justification, acting in the so-called naturalistic fallacy, which leads to the derivation of the duty being of being in contravention of the law called Hume, that no conclusions can be derived logically moral prescriptive or descriptive or factual premises, and vice versa.

Therefore, briefly, one can distinguish the following alternatives:

a. Retributive point of view of the end of the sentence would be the answer to why you should punish, and a preventive point of view of the end of the sentence would be the answer to what to grieve.

b. In return, a remuneration point of view function of the penalty would be the answer to the question of what penalty, and a preventive point of view function of the penalty would be the answer to what it is worth.

This classification is enlightening because, as we have seen, the pay is a look back (why, or metaphysical function), and preventing a look to the future (for what, or social utility function). The latter is the reason that usually are related by some authors, erroneously, according to the concepts of prevention, identifying them.

Role of Criminal Law and Theory of Punishment

The first question to be addressed by the study of criminal law in force is the one concerning the role of standards in it. This is a response to the question: why or what sets the company organized in the state a set of rules that threaten the implementation of a sentence the execution of certain behaviors? In this sense, the role of criminal law and theories of punishment are closely related: the whole theory of punishment is a theory of what role the criminal law. In a simplified manner in classical thought, and bearing in mind the points made above, there are two lines of thought that seek an answer to these questions, on one hand it is argued that criminal law has a metaphysical basis, namely the realization of an ideal of justice (retribution), and secondly, that the criminal law has a social function (utility), characterized by the prevention of crime in order to protect certain social interests recognized by positive law (legal rights).

The role of criminal law is, in turn, linked in a very narrow conceptions of legitimacy. If held to be a function (self) of the State perform certain ideals of justice, criminal law is understood as a tool for justice value. On the contrary, if we understand that justice, in this sense does not lead to a state function will make use of other concepts of criminal law in which it will be understood differently. Usually, in this case, justifying the criminal law as a socially useful instrument, the value assigned to these functions will be the foundation of legitimacy.

At present the history of criminal law is expressed in the attempt to synthesize the two opposing views. The utilitarian criterion (social utility) is accepted in which mitigates the rigor of the principle of justice. For example, while supported with varying intensity, according to the laws, the aggravation of penalties for repeat and habitual offenders, there is no place, in general, the indeterminate sentence.

The answers about the nature of the sentence has been formulated as theories of punishment. However, it should be noted that theories of punishment are such only to the extent that the term theory is taken broadly.

Given the confusion of many authors between the concepts role and purpose of both the criminal law as punishment, and between compensation and prevention, to allocate normally (and wrong way) the term in order to pay, and the term function prevention, we must carefully examine each of the creations are often deceptively confusing concepts in the search for legitimacy.

Thus, theories of punishment should correspond to the following question: under what conditions is a legitimate application of a penalty?

The Central Element of Subjective Type of Crimes Commission Intent: The Fraud⁵

Before you can answer the question that we formulate the end of the previous chapter, we review some concepts of willful criminality commission. As a first approximation, it noted preliminarily that a typical action can be executed with malice or by mistake not to both provisions of the will, because they are incompatible.

Mens rea in criminal matters differs greatly from fraud in civil matters. First, the criminal intent is a neutral concept, benefit, synonym, simply, the aim implicit in the act (or omission) typical, which is then judged in relation to grounds of justification (the view of illegality) and in relation to the subject’s culpability for his conduct (trial of guilt), whereas the civil fraud is always synonymous with malicious intent, aimed to infer damage or injury to another. Secondly, regarding the fraud penalty can be not only direct but also indirect or contingent, classification does not exist in civil matters. Finally, criminal intent may be directed to the commission of many typical acts against various legal rights, in circumstances that the civil fraud is directed only to damage (equity) or injury (honor) of people. The greatest opportunities for confusion often occur in contractual matters with the fraud (civil) as a vice of consent, which in most of the cases results in a criminal fraud.

Fraud can be defined as knowledge of the objective elements of nature and the will to fulfillment. That is, simply, knowledge and willingness to realization.

From the above is that distinguishes the cognitive element of volitional element of intent.

In the study of the cognitive element of intent, there are two important issues: first, that is what interests us is the content knowledge of the facts and must also highlighted the problem of type error.

Content Knowledge

In terms of content knowledge of the facts, it must be complete, extend both to the elements of actus reus and the altering circumstances of liability.

In terms of its intensity, there is a thorough legal knowledge that would offend only the lawyers but, as noted by Mezger, a parallel valuation in the area of the profane. Ie, only the knowledge of the layman. With respect to the intensity of knowledge is not required that all elements are, in the expression of Bacigalupo, in the center of focus of the author’s consciousness, it is sufficient that have been perceived by the author, for example, expression at night in the wilderness, or in place for the exercise of a cult.

As for the timing of knowledge of the elements of actus reus, it must be current, to be required now, the prior knowledge that has been the author and then forgotten, it is irrelevant in this venue. The knowledge acquired by the author after the completion of fact, or fraud subsequent subsequens-fraud, “is also irrelevant, not intentional becomes a fact that was not.

Kinds of Fraud

From the point of view of the element of will, the fraud supports a triple traditional classification: direct malice, fraud and deceit eventual indirect.

a. Direct malice is characterized by the fact that the person knows what he does and wants what he does. The verification of the target rate is precisely the goal of the active subject. Peter knows that pointing the gun to kill John, want to do it and do it.

b. The indirect intent, also known as the necessary consequences or second degree, is a kind of direct malice, characterized by the fact of not being specifically targeted behavioral outcome, but it is done knowing that the result is certain and inevitable consequence it. Peter wants to kill John putting a bomb on the flight that took it. Peter acted with malice indirectly for the deaths of the two hundred passengers who accompany John on this trip, it deems necessary for its purpose.

c. The eventual intent reflects a complete indifference as to the possibility that the target rate or not produced as a result of the action. It is emphasized that the essential difference between the direct and intentional deceit is possible at both the cognitive and volitional. In the case of possible fraud, the subject is such a check as possible, but this does not stop to bring their action, carried out with indifference to that result.

If knowledge of the factual elements of the crime is imperfect, it is impossible that the individual truly wants verification of the crime, in a strictly criminal law, where love will import an efficient movement in order to achieve a specific goal. If John wants to burn the house to collect insurance Pedro, burning without being able to see if it truly is in it, play with eventual intent, as the verification of the crime of murder is also possible. Is the possibility of verification of criminal, from, for example, the imperfect knowledge of the factual circumstances, which allows us to establish the existence of possible fraud in a case. In fact, it never appears as an eventual goal requires the will of the subject and is not susceptible, the event, as such, if desired by the agent. The objective conduct of the agent is not found in that classic means-end relationship with respect to verifying the target rate, which characterizes the direct intent. Normally, this behavior is related to half with another goal (eg., Collect insurance), but not about the offense eventually verifiable.

Consequently, we can say that the radical difference between direct and eventual intent is that in the first verification of the target rate is the goal of the will of the subject and his conduct is the means chosen for such testing, while in dolus eventual verification of the crime is a foreseeable consequence of the agent’s conduct, but that is not expressly pursued by the agent, so that their behavior is not a method used to arrive at such a check, but a means to achieve other purposes, with the objective verification of the type expected only a collateral consequence and to which the active subject expresses indifference to the event to occur.

Typical Fitness for Tort of Crimes Commission

Preconceptions⁶

The blame reckless or negligent act, so as to violate duties of care, either by omitting the course causal control adequately for who has the power to do so, or risk creating not allowed, predictable, and risk awareness socially appropriate, thus resulting in avoidable typical results (as they are required by type) and unloved. The subject acts demonstrating that there is a contempt for the legal interests protected criminally.

With the above definition implicitly recognize that the will plays a merely supplementary to the determination of fault, even though it is fundamental in the field of the distinction between intentional behavior and negligent conduct. This is because as it becomes clear that the concept of guilt is developed from a normative construction focusing on the duty. Today the central problem is the determination of intentional crimes of this duty, which is carefully against the risks that are created for the legal, and the criteria for determining precisely when such infringement is relevant to criminal law.

In this regard, the Criminal Code in its Article 2 states that the acts or omissions committed with intent or malice would import a crime, are tort if only fault in which committed, and Article 10 No. 13, which is exempt of criminal responsibility who commits a tort, except as expressly punishable by law.⁷

Recently there has been progress in the study of intentional crimes, to the point that today it is commonly accepted distinction between objective and subjective, while still being discussed passionately about the problems of participation and allocation to the victim.⁸

In the objective aspect of the breach of duty of care, the subject must be in a position to adopt the correct solution, the ability to carry out the action not created the danger. Here again we encounter the concept of middle man, which should take into account the specific capacity and the expertise to take the subject in question. This view, which is called individualized determination of recklessness, is rejected by those who adopt a purely objective concept, which dispenses with the special abilities of the author, but do take into account its special knowledge as Gosselaar. Instead, authors like Stratenwerth Bacigalupo and with whom we agree on this, consider that there is no reason for differential treatment between capabilities and expertise. On the contrary, as noted Bacigalupo, does not violate that duty of care according to their skills and knowledge, could not have foreseen the realization of the type¹¹. Add to López Barja de Quiroga reported that as, if not taken into account the ability and special knowledge, it would be possible infringement of risk and subjective type of offense reckless¹². What appears clear, but it should be stressed here is that special knowledge, as part of individual predictability, even when they are part of the breach of duty of care, they are in the subjective aspect of fault type, while individual capacities, as part of the breach of duty of care, they are in the objective aspect of fault type, the overall predictability (within the concept of risk allowed), for example, obtained by training capabilities, such as special parachute jumping instructor, the shooter’s choice, or entail physical skills instructor, dive guide or a mountain-climbing a mountain in the Andes or the Himalayas.

Here we also distinguish, as in the intentional type of commission, creating a risk not allowed and the realization of risk (attributable to the result, in the case of culpable of committing crimes result), on the terms previously studied.

Recall that for us the risk is grounds for possible exclusion of criminality (the risk that acts within the allowed no actions or omissions typical, although legally protected injury), as is also Welzel, Stratenwerth, and Bacigalupo, other Jescheck pronounced as¹³, in his Treatise on Criminal Law, in addressing the possible risks include among the grounds for justification, but now has changed its position, and only mentions it in this venue as included in each causal recognized. Therefore, it behaves within the tolerable risk does not make a typical behavior, or criminally relevant, even when there is injury or threat of injury to a legal right (to be atypical behavior, is just to say that it is not of a legally protected criminally, at least for that conduct, the risk that leaves allowed legally outside the limits of criminality and criminal protection).

Along with the doctrine of permissible risk, Roxin¹⁴ states which delineates the duty of care to the so-called principle of trust, under which the care that puts the act must be confident that others will too, and spreading its effects when he attends the performance of several people. Especially in road traffic law, is now recognized that the denial is for an increase of unacceptable risk. Roxin himself gives an example saying that he has right of way at an intersection does not require slow down, trusting that others respect its law, although even drive drunk, the denial of impunity, in this case would involve unacceptable enactment of a Versari in re illicita. As we shall see below and on the allocation of their own risk generated, the victim, this example about the possible risk reinforces the systematic offer to the objection of the result who creates the risk, provided it is done in the result.

Elements of the Actus Reus

Here we are interested in only some aspects of objective type, especially the behavior and the main verb, the legal order and the result.

Fault Action

Is that infringing the duty of care objective. For us, the duty of care is determined according to the theory of risk allowed. Not all risk from typical, but only one who exceeds the limits tolerated by the law, ie the subject is required to perform an action that exceeds the tolerable risk. The risk allowed itself excludes the typical behavior. Negligent action is studied based on the types of action calls.

The Main Verb

Within the target rate from the offense, obviously the first thing we find is the main verb, which is none other than that which is contained in the offense committed negligently. So if this is a wrongful death, obviously the main verb phrase will be referred to the killing. What happens is that in this case, another death occurs as a result of a breach of the duty of care. This is the mode of action that we clearly define the typical action.

The Legal Order

The criminal legal interests protected, reiterating general concepts should be worthy of protection, be in need of protection under criminal law and criminal law should be able to protect them. As to merit protection, we must not forget that the criminal support different senses in relation to the legal order may contain, which protects conduct that are assessed as suitable to injure, and that, through social assessment, are considered relevant to lift the criminal protection. That is, the merit of criminal protection of a legally be built both in the social value of the property and its importance, as the severity of the attack¹⁵. In the crime culpable breach of duty of care and creating a risk reckless aggression is not allowed to well-child legal entity that intentionally done, hence the sanctioning of criminal recklessness or negligence in our criminal law are very restricted. Regarding the need for protection, or quality of the legal need to be protected in criminal law, it must be a well that could not be protected adequately or effectively by other sectors of the legal system. As we shall see when dealing with the unconscious guilt in the subjective type, we believe that the protection of private sector management is sufficient in this case, being unnecessary the criminal protection of legal goods and unrepresented injured negligently. With regard to the ability of protection from the criminal sector of the legal system not only can be a material failure by scientific ignorance, but there are legal rights that are not susceptible to a real and effective protection, for example, cultural historical moment that is lived, as cases of modesty, decency, etc. We must not forget, of course, that the legal subject injured in crimes and crimes intentional negligence does not change.

The Causation

Objectively is attributed to the effect that the result (in the case of intentional crimes of results) can be normatively attributed to careless or reckless action. This is determined through a mental operation consists of estimating attributable “to the act or omission not allowed creative risk-if the result of the absence of the care required by law that had not occurred.

In addition to the result constitutes the realization of the risk created by the action, allocation criteria are used. The first, according Roxin¹⁶, is the increased risk theory, which states that it is necessary that the subject’s behavior has increased the possibility of production of the result compared with the risk that is acceptable within the range of tolerable risk. Also, as noted Gimbernat¹⁷, is used as a criterion for attribution theory in the field of protection of the rule according to which the rule imposing the duty is to avoid certain results, and not others, and when the result is not of those is outside the scope of protection, should deny the charge. Finally, we meet the criterion of the theory of avoidability, which is required to ask what would have happened if the person had acted in accordance with the standard. If he had acted according to it, however the result would have occurred, be denied the allegation. To Bacigalupo,¹⁸ to effect the outcome of the complaint is sufficient that the action set to the duty of care might have prevented the production of the result, while others argue as López Barja de Quiroga¹⁹, which requires a high probability, rather than a mere possibility, of course, nobody requires absolute certainty. It also mentions the already mentioned principle of trust, which is instead a risk boundary, a method of allocating according to which must be accepted that the subject can consider that others will behave according to the standard.

The Result

We refer to it in the terms in which the subject has been explained above, in the case of crimes result. This requires a little explanation. As noted above, the result is not an element of the actus reus of intentional crimes, except in cases where it is required by them. As in intentional crimes, crimes are premeditated and intentional crimes result of mere activity. Examples of intentional crimes of mere activity are found in the Penal Code offenses under Article 224, Article 225 N° 1, Article 228 paragraph 2, Article 229, Section 337 subsection 2, and in the absence referred to in Article 494 No. 10. Obviously we refer to the material result, not the law, which is injury to a legally protected criminally.

Thus, the result must be attributed objectively wrongful action. No answer the active subject rather than its own violation of the standard of care. If damage has occurred as a result of a negligent act or omission by the victim, it will be attributed to it (charged to the victim), so for example if your vehicle carelessly handled Pedro and moves at a crossroads streets despite having before him a signal indicating stop, and impacts to the vehicle that leads Juan, and this is driven as a result of impact outside the vehicle, seriously injuring Peter should not held criminally responsible for those injuries if John was driving omitting the use, by regulation requires all drivers, safety belt, since it is highly unlikely that the expulsion had the vehicle, and the resulting injuries, if any used. Other examples in the same direction may include the conduct of John with the vehicle’s lights off and night, loaded or stowed improperly or without authorization to go to load, etc.

Forms of Guilt

The traditional classification of the forms of fault includes negligence, malpractice and incompetence.

The recklessness is facing a risk clearly not controllable, in breach of duty of care. In our Penal Code, Art. 490 is sanctioned recklessly, which is the most intense degree of fault to penalties, and corresponds to ignoring the most basic duties of care.

Negligence is facing a controllable risk, but that translates into a typical result of the lack of concern or care in the act. Usually marked by the Chilean doctrine is identified with the lack of care than the average man employed in the activity developed²⁰.

Finally, the incompetence involves taking risks for which they are aware that there is sufficient preparation, it required special knowledge or skills.

Ultimately, the blame always involve a breach of the duty of care in life, a relationship that results in not adequately controlled causal courses, creating risks not permitted and may do so in order to prevent undesirable outcomes resulting in (typical .) Certainly, the absence or lack of proper monitoring of progress risks creating causal disallowed can be verified as a result of having generated or involved without taking adequate precautions to prevent diversion (culpable commission) or for failing to intervene, alter or discontinue this course causal , could and should do, but refraining from without fraud of any kind, but only for not being attentive to one’s duties to act (omission fault).

The Subjective Type

When we refer to the problem of subjectivity in the crime rate unwise, it is obvious that analysis flatly rejected the old notions of causation, typical of the early thirties of the twentieth century, even if those survive, especially in Latin America, the hands of some authors that such conceptions were formed during his youth. A systematic causalist know the distinction between objective and subjective type type and also the distinction between subjective objective duty and duty of care in the offense reckless. However, no matter how respectable they may be these views, as the authors’ personal beliefs that defend them today, after more than seventy years of evolution, only represent a local historical interest, so we will leave aside in this analysis.

For us, as we separated the study of such aspects or intentional in their objective and subjective sides also should distinguish between objective and subjective type type in the offense. While in the target rate is set as discussed so far, breach of the duty of care, Causation and result in subjective type analyze the cognitive and volitional elements.

Accordingly, we recognize, along with the existence of a target rate, a subjective offense, but with the proviso that question, as in intentional crimes, an educational division rather than real.

Usually distinguished, too, because of a subjective level, a positive element, namely that he wanted to make reckless conduct, and a negative, you did not want the author produced the result. Some authors, such as Garrido Montt²¹, in Chile, consider these elements, positive and negative, are the subjective type of intentional crimes, a position which, though respectable, it seems insufficient.

For us in the subjective type, it includes a cognitive element of guilt, namely the predictability of the typical outcome risk and knowledge of socially inappropriate, or ability-to know who submits a legally through their own behavior risky, and a volitional element, referred to the voluntary decision to maintain or neglected person’s conduct, despite knowing guilty conscious) the risk that the legal subject, believing that they can avoid it, or the mere duty to know, but not being conscious, “because if it is not possibly avoid it, unconscious guilt believe that, as discussed below, must be considered with impunity).

It is here in the subjective type of intentional crimes which include special knowledge of the subject asset, which enhance the possibility of providing the typical result of knowing the risk or socially inappropriate created by the risky action infringing the duty of care. For example, a computer expert by a bank system, the greater the possibility of knowing the risk and predict the outcome to support the checking account information in an easily corruptible to information overload, producing loss thereof.

From our point of view is the following scheme:

Predictability (The typical result)

Cognitive element

Knowledge

(From Risk socially inappropriate)

Subjective type

Know the risk

Volitional element fault cpnciente

(Decision, though)

Mere duty, not knowing

unconscious guilt risk)

Moreover, this scheme and is an elaboration on the recognition of the undeniable importance of the offense. Criminal proceedings for criminal negligence “in relation to the attacks against the individual in its physical conditions, where clear-come far exceed in number and frequency to those who are intentional crimes. This is very logical if one considers that the conduct is intentional crime considerably more marginal and, therefore exceptionally, for the offense. Murder or revenge killings committed with malice, are much less frequent events that occur daily deaths resulting from traffic accidents. Is the increasing importance that some authors have raised the need for a special criminal law to blame, a position that we agree.

Species of Guilt

Conscious Guilt (or Representation)

It represents the subject as possible the result, knows the danger created by their conduct, and yet, he acts. In this case, trusting that it can avoid the result and rejected the possibility of occurrence. This categorical rejection of the result is what is the difference of potential fraud.

The Unconscious Guilt

Here the subject does not even represent the result. That is, does not foresee the outcome, even though, of course, is predictable. A classic example of this situation are called crimes of neglect. It is therefore considered to comply with the subjective type if your circumstances could and should know the danger of his action. Is so thin the blameworthiness of the action, which can only be devalued with strict regulatory criteria, comparing the action taken with the subject should and could have done, which is discussed by some authors for their criminality. In this sense, Bacigalupo²² stated that it is not certain that the instigation of unconscious guilt is compatible with the principle of guilt, indicating that the author is not in danger of his action can hardly be motivated to correct the course of the same.

As can be seen in the crime manslaughter is gradually reduced the cognitive element, with respect to possible fraud, and then unconscious guilt, therefore it is called again without representation, “is vague, the disappearance, the element of will.

For us, the call goes unpunished unconscious guilt. This mainly for two reasons. Criminal law should not protect the most valuable legal rights to attacks, although injured, they have no relevance or severity, and therefore lack of the need for protection, provided that the legal order through the civil or private sector thereof. Then, and as the main reason, the minimum level required in the crime rate subjective fault is that the active subject is rendered the danger of his conduct, and not as subjective type level in the intentional crime, which represents the objective-type items, that is, it should be possible to represent the risk created by the conduct. If there is no predictability of the typical result, knowledge of the risk or socially inappropriate, it would violate the principle of made-to punish the perpetrator to be, not to do-and the principle of legality in general. If the risk is not represented, can not possibly believe evade, or attempt to elude, becoming a must do not know. Invincible ignorance of the prohibition or mandate excludes criminality and, therefore, the wrongfulness of conduct. It is not, as claimed by Bacigalupo, a breach of the principle of guilt-because of the view that the subjective element of duty of care is rooted in guilt, like Welzel, but a problem of subjective, and the importance of it to establish the relevance and level type of conduct prohibited.

Another interpretation that did not preclude the instigation of unconscious guilt would undermine the principle of the act, and the constitutional prohibition of presuming the guilt, and against the most reasonable contemporary interpretations of Article 1 of the Criminal Code, which limits criminal liability to cases of awareness of the wrongdoing, actual or potential. If the actor can not be represented, or even potentially the wrongfulness of his actions, his conduct must be punished. You can not impute any, that are the most known cases of unconscious guilt. As discussed in the following paragraph, this is not a minor matter.
5. DISTINCTIONS BETWEEN CRITERIA AND POSSIBLE DOLO conscious Guilt
The biggest problem with the eventual intent is the demarcation of laculpa or recklessness concienteBásicamente distinguish between theories that place emphasis on the volitional aspect of intent (theories of the will, consent or acceptance) and that emphasize the intellectual (theories representation or probability).
a. In the theories of representation, it is estimated that conditional intent when a person has represented the verification of the outcome (even better and more precisely, the verification of the target rate) as very likely, because it is argued, acting not But know that the target rate will probably be checked, not least in its willingness to accept such a check. There is criticism that there are specific cases in which the active subject, however represented as highly likely the result of production or verification of target rate, by no means accepted in his will that any check (in the case of the physician who assumes the risk an operation without adequate hygiene means in an attempt to save the life of a wounded man in the wilderness).
b. The theories will deem to be demonstrated, obviously through external means, that the active subject, indeed, has accepted the will, with indifference, any objective verification or production rate of the outcome, a fact that is independent of the degree probability that the subject has shown that verification or production.
Within these theories of the will, are hypothetical and positive theories of consent. The first points to be estimated conditional intent that exists if the subject had known that the result would occur (or the target rate would be verified) surely would have acted anyway (in other words, acted with malice who also possible have acted with malice indirect). For the positive theory of consent, simply must work with the situation effectively volitional subject, appreciated from external data, in the sense of whether expressed a genuine indifference to the possibility of producing the result or objective verification of the type: this occurs it happening one way or the other, no matter, I act like (Frank).
c. Other concepts. In modern penal doctrine have made efforts to achieve better classification criteria. Thus, for example, to Stratenwerth, if the subject was taken seriously the possibility of realization of the objective elements of nature and, however, the action took place, there would be conditional intent, whereas, if he trusted, by light or recklessness, that the conduct did not occur type, there would be a conscious recklessness. Have embraced this approach, among others, Jescheck, Wessels, Roxin and Rudolphi, Germany, and, similarly, Zugaldía Espinar, Spain. Contrary to pronounce Cerezo Mir, who believes that harms people scrupulous, conscientious and responsible and promotes, instead, the careless or selfish, that reflects and therefore not taken seriously the possibility of realization of the type.
Thus, we conclude, following the Spanish professor of Cadiz, Hava Esther Garcia ^23, traditionally the majority doctrine had been understood that although the conditional intent has in common with the guilt aware that the author is represented as possible to perform the type, reveal willful misconduct, against the reckless, an excess of seriousness of the offense materialized in a more or less intense than do the typical fact, while another doctrinal industry, originally very much a minority, began to deny relevant to volitional element when classifying a behavior as intentional. However, none of these doctrinal positions were able to provide unambiguous criteria while fully successful in delineating the proper scope of possible fraud against the recklessness: a, by assuming the occurrence of a subjective element so difficult prove as willing to do a particular type of crime, others, precisely because without the element of will and focus exclusively on content of any fraud in the cognitive element. Given this perspective, modern contributions have chosen two different ways: the first one is characterized by attempts to re-define or, if you will, soften the volitional element, in order to justify even in some conditional intent presence of this component, while the second does disappear for the content of the fraud itself, enriching and qualifying in place, the cognitive element to make it the only valid criterion of demarcation against imprudence.
6. THE PROBLEM
6.1. Adapting the concepts of order and function to solve the problems
The consequences of adopting one position or another are not irrelevant. If part of a dualistic, which are maintained to some extent the components traditionally awarded to the intent (that is, knowledge and will) be possible to differentiate the two classic categories of negligence and conscious and unconscious guilt) and figures outside the environment of the misconduct, to circumscribe it and affirm the exceptional nature of the punishment of laculpa conceinte.In contrast, if accepted a monistic view, that sees the fraud as pure knowledge, the distinction between conscious and unconscious guilt negligence (or fault with and without representation) will lose much of its meaning, to the extent that the first category integrate within the content of any fraud, leaving as the only possible modality of the unconscious culpable commission. The political-criminal consequence of this second option is clear: behaviors that have traditionally been rated, and if punishable as reckless (although the subject to represent the possibility of the result) should now be considered malicious, its punishment far from being exceptional, would worsen and become binding ^24. Obviously, we reject the second possibility, the apparent breach of the principles of legality and culpability.
6.2. Criteria for a solution: the distinction between impairment of value of action and outcome disvalue
The Criminal Law as a legal sector, consists of a set of legal rules, as they integrate other sectors that contain a rule of conduct imposed on citizens by a mandate to make or omitted, and the threat of a criminal penalty for those who disobey the mandate.
The criminal law contains value judgments about a particular event, and that by associating a penalty to its application-or omission-is making a trial of impairment of value on it. In this sense, the criminal standard is objective standard of assessment. But in addition to the criminal provision contains an imperative to press on the antisocial tendencies of the individual, thus functioning as a factor that should motivate the socially adjusted human behavior. As criminal law punishes violations of legal norms, we talk about impairment of value of action.
If we say that criminal law is a legal industry, it is punitive in nature, so it is aimed to regulate human relationships and manage the social structure to allow coexistence, protecting certain fundamental values for the individual and the community of which it forms part, by the injunction of sanctions or the establishment of security measures against those who violate them. These values are the goods which are necessary to the individual or the community for its implementation and development. As these assets deserve the protection of law, are called legal rights.
Of the values that affect the individual and the community and deserve protection in other branches of law, criminal law does not excuse all his “particularly strong” protection, but only the most fundamental: those whose injury or endangerment disturbance is essential to the foundations that make possible the coexistence of men. Nor should protect against any attack, but only to those who, because of its special intensity or modality are more intolerable to live with. As criminal law aims to protect legal rights, your injury or endangerment disvalue talk about outcomes.
Well, we make the following question: What is the relationship between the impairment of value of action and result in impairment of value of the categories of criminal negligence and willful misconduct? In both categories of crimes, we can observe in the target rate that produces the same impairment of value of result, that is, injury or risk of injury to a legal right. However, the impairment of value of action differs, since it is more desvaliosa breach of the standard as accepted by the plaintiff in the case of willful misconduct ^25.
So it turns out that, in matters of criminal law the end, who put emphasis on the protection of the validity of the rule should also be in favor of making the impairment of value of action prevail over the value of result and, conversely, those who put the emphasis on the protection of legal rights should give primacy to impairment of value on the outcome of impairment of value of action to present a position of systematic coherence in their tenets.For example, we have the point of view of functional authority, as Jakobs ^26, for whom the primary purpose of criminal law is to protect the validity of the rule and, therefore, focuses his arguments on the impairment of value of action. However, when it comes to arguing about the distinction between conscious intent and guilt eventually does not include these arguments, since in its search for a concept of conditional intent based on knowledge alone ignores the profound contradiction incurred, by neutralizing Action disvalue disvalue giving priority to outcomes. This is because if it is considered as the impairment of value of an act done with conscious guilt and another made with any malice, it neglects the structural differences between the standard and the mandate contained therein, because it is not conscious and disobedience aware that the fault dear and unloved.
Well, that’s why we can not disregard a priority by impairment of value to another, as there are cases that show, like the distinction between conscious and intentional fault possible that both the impairment of value of action as the impairment of value of result have a role to play in the grounds of criminal law. We can not defeat the purpose legal conservator has criminal law, assigning as sole purpose to the detriment of the impairment of value of action to contain any illegal, since the commands and prohibitions are part of the essence of punitive legal sector, and more than mere indicators of a preventive purpose. Facing the constant threat of abuse of the right to punish state-for example, the types of strict criminal liability, are infringements of the rules contained in the criminal types that make up the type and are guaranteed by our State Constitution.
We recall here, regarding the distinction between intentional crimes and intentional crimes, previously formulásemos questioning the theories of punishment: under what conditions is a legitimate application of a penalty?
Our answer is that, for the application of a penalty in cases that are close to the boundaries between criminal negligence and willful misconduct is appropriate, according to the purposes and functions of criminal law, use the double argument and action disvalue impairment of value of output. This is because it is not possible to sustain the application of a penalty on an intentional when there is less impairment of value of action, that is, when the element of will in the subjective type, based on the voluntary decision to maintain or neglected person’s conduct, despite know the risk to undergo criminal legal goods protected, the belief is to avoid danger or injury, the active subject is not intended to and does not want the violation of the rule.
^* Director, Department of Criminal Science, Faculty of Law, University of Chile. E-mail: vbullemo@derecho.uchile.cl
^** Assistant, Assistant to the Chair of Bullemore Professor, Department of Criminal Science, Faculty of Law, University of Chile. E-mail: jrmackinnon@yahoo.com
¹ Cf Bullemore G., Vivian and R. MacKinnon, John. Purpose and function of criminal law and punishment: theories of punishment. Annals of the Faculty of Law 5 th season (1) 2004: 13 to 33.
² Alcácer Guirao, Rafael. The purposes of criminal law. Liberalism and communitarianism in the justification of punishment. Ed Ad-Hoc. Buenos Aires. Argentina. 2001. P. 258. While (that) the effective protection of legal interests will always protect the operation of the rules, because the end is that they are in fact respected the role of force protection, but it may take to those that depart respect of a previous stay in it, per se implies no effective legal protection of property, but only the belief that this occurs.Materially, then, the satisfaction of both tasks can only be achieved when presuming primary purpose of the protection of legal rights. … opting for one purpose or another as telos of criminal law has to pay particular attention to evaluative criteria of legitimacy, according to which, from a liberal conception, primary purpose must be the protection (of) the immediate individual interests-security material goods legal, “and only complement the cognitive safety protection, which can be understood as well mediate for citizens. … In conclusion, the preventive purpose of criminal law, in addition to garantístico order to protect individuals against state violence, lies primarily in the protection of legal rights, and only secondarily to protect the validity of the norm, for , as already stated, closely linked functionally, although not entirely reciprocal. So, make sure the expectations operate as an end in itself, while the second order, but also as a means-given its promotion of respect for the rules-to achieve the main aim of the protection of legal . Cf Alcácer Guirao, Rafael. The concept of crime: Injury of the legal duty or injury? Ed Ad-Hoc. Buenos Aires. Argentina. 2003. Pp. 143 et seq.
³ Welzel, Hans. German criminal law. General Party. 11 th edition. Trad. Juan Bustos and Sergio Yáñez. Jurídica de Chile Ed. 1976. Pp. 12 ff. The central mission of the criminal law lies, therefore, to ensure the validity of these values unwavering act by the injunction and punishment for failure to observe fundamental values expressed legal act effectively. … The right to punish non-compliance effective values of the legal awareness, while protecting the legal rights to which are referred to those values act. … However, the primary mission of the criminal law is not the current real legal protection, ie protection of the individual person, their property, etc. Well, actually it enters into action, usually it’s too late. More essential for the protection of certain specific legal rights is the task of ensuring the effective exercise (enforcement) of the securities act of legal consciousness, they constitute the most solid foundation that supports the State and society. The mere protection of legal rights has only a preventive purpose, police and negative character. By contrast, the deeper mission of the criminal law is social and ethical nature of a positive nature.
⁴ Cf Ferrajoli, Luigi. Criminal law minimum. In: Prevention and punishment theory. Legal Ed Santiago ConoSur Ltda. Chile. 1995. pp. 25-48. Page 26: A methodological defect can be seen in many of the answers to the question “why punish?, Is the confusion in those falling between function and purpose, or between being and the penalty must be , and the consequent assumption of the explanations and justifications or vice versa. This confusion is practiced above all by those who produce or sustain the philosophical doctrines of justification, presenting them as theories of punishment.
⁵ Cf Bullemore G., Vivian R., MacKinnon R., John R. Criminal Law Course. Volume II, Theory of Crime. 2 edition. Ed LexisNexis Chile. 2007. Pp. 40 ff.
⁶ Cf Bullemore G., Vivian R., MacKinnon R., John R. Criminal Law Course. Volume II. Ob. cit., pp. 50 ff.
⁷ In Chile governing the system of numerus clausus, ie, only exceptionally culpable conduct penalty, and generally only in crimes against persons (articles 490 and following of the Penal Code).It provides a system of criminalization of negligent conduct so-called mixed, inherited from the Spanish Penal Code of 1848, and interpreted as crimina fault, as opposed to culpae crime. This requires a little explanation. Culpae crime system implies that assumptions are numerus apertus reckless, with general provisions for punishment, while the system is guilty of the crime crimina reckless as to its typing technique, similar to intentional crime, accepting only types concrete. Obviously, breach of the principle of limitation, culpae crime does not respect the principle of legality, sometimes reaches absurd. We must clarify, though, that in the Chilean Penal Code are general clauses, but bounded, as in the case of crimes against persons (Arts. 490, 491 and 492). The argument of greater weight that tips the scales in this area in the sense of interpreting the criminal reckless as crimina fault lies in the necessary connection that should exist between the hypothesis with the hypothesis intentional fault, which is typically described with respect of general clauses. And we must not forget the many types negligence that under the Penal Code, such as in Articles 224 No. 1, 225 No. 1, 228 paragraph 2, 229, 234, 243, 302, 329, 333, and 337.
⁸ Cf Bullemore G., Vivian R., MacKinnon R., John R. The offense manslaughter and four problem areas: the subjective type, error type, the attribution to the victim and participation. Journal of Criminal Procedure. Santiago, Chile. December 2005 (42). Pp. 9-29.
⁹ López Barja de Quiroga, James. The offense reckless Penal Code 1955. Judiciary. 2nd time (40) October-December 1995. Ed the Supreme Judicial Council. Madrid, Spain. 1995. Pp. 215-245.
¹⁰ Maurach, Reinhart. Criminal Law: General Part. Updated by Karl Heinz Heinz Gosselaar and Zipf. Translation of the 7th German edition by Jorge Bofill Gensch. Ed Astrea, Buenos Aires, Argentina. 1995.
¹¹ Bacigalupo, Enrique. Principles of Criminal Law, general. 5 th edition. Ed Akal, Madrid, Spain. 1998. P. 244.
López Barja de Quiroga ^12, op. cit., p.. 230.
¹³ Jescheck, Hans-Heinrich. Criminal Law Treaty. General Party. 4 th edition. Trad. José Luis Manzanares Samaniego. Ed Comares. Granada. Spain. 1993. Pp. 537 ff.
¹⁴ Roxin, Claus. Criminal Law. Party general. Volume I. Fundamentals. The structure of the theory of crime. Trad. of the 4th German edition by Luzon Diego-Manuel Peña, Miguel Díaz García and Javier de Vicente Conlledo Remesal. Ed Civitas, Madrid, Spain. 1999. Pp. 1004 et seq.
¹⁵ Cf R. MacKinnon, John R. Ownership and participation and the crime of receiving stolen goods. Ed LexisNexis, Santiago, Chile, 2004, p. 3. This object of protection, or legal, is not only an object of minimum match but a guiding principle in the interpretation of criminal law, is defined by the interpretation in the context of the possible meanings supported by the wording of a offense. If interpretations are dyed by the nuances and subjective interpreter, within the framework of the possible meanings in the wording of the text, which in turn, is defined by the social context in which it is, from one to another-the interpreter and the text-it is possible to require a screen that gives overtones of rationality to the process. In this filter guarantees premium penal system developed in the modern liberal and democratic state of law. That is, the set of basic principles of criminal law (which can also be read as intersubjectivity) refer not only to the interpretation of the criminal, but the interpretation of the legal order that the interpreter is mentioned (protected) in them.In short, these behaviors that we mentioned above (valued as good) are, in turn, the object of the rule, which in turn is defined legally, which in turn may (or may not) be, in whole or partly of a criminal offense. The same concept: Bullemore G., Vivian R., and R. MacKinnon, John R. The failure of prohibition and penal reform. Revista de Derecho, Pontificia Universidad Católica de Valparaíso. XXVI, 2005, semester I, Ed Valparaiso University: pp. 101 et seq., And note No. 23).
¹⁶ Roxin, op. cit., pp. 1001 et seq.
¹⁷ Gimbernat Ordeig, Enrique. Crimes qualified for the outcome and causality. Ed Centro de Estudios Ramón Areces. Madrid, Spain. 1966. Pp. 135 et seq.
¹⁸ Bacigalupo, op. cit., p.. 246.
López Barja de Quiroga ^19, op. cit., p.. 233.
²⁰ Cf Garrido Montt, Mario. Criminal Law. Volume II. Theory of Crime. Editorial Jurídica de Chile, Santiago, Chile. 3 rd edition, 2003. P. 173.
²¹ Cf Garrido Montt, Criminal Law, op. cit., p.. 165.
²² Bacigalupo, op. cit., p.. 250.
²³ Hava García, Esther. Any conscious intent and guilt differentiating criteria. [Online] Criminal Law Directory. Peruvian Association of Penal Law. 2003. Pp. http://www.unifr.ch/DerechoPenal/anuario/03/Hava.pdf> 111-146 [accessed 17 March 2008]
²⁴ Hava, op. cit., p.. 113.
²⁵ Moreover, if accepted the view of the proponents of purely cognitive theories of fraud, be it practical expression in penal matters involve an unacceptable increase in punishment for many crimes. For example, a wrongful death, guilty conscious carries a maximum penalty of imprisonment in the medium degree (from 541 days to three years in prison), while the penalty for manslaughter (with conditional intent) leads to the minimum penalty of imprisonment in its minimum degree (five years and one day to ten years imprisonment). Consequently, to accept the purely cognitive point of view, threaten the commission of manslaughter by a minimum penalty two degrees higher than the maximum currently in effect, breaking with all proportionality in penal matters.
²⁶ Cf Jakobs, Günther. Criminal law, general. Fundamentals and theory of the complaint. Trad. Neck Joaquin Contreras and José Luis Serrano Gómez de Murillo. Ed Marcial Pons, Madrid, Spain. 1995. Pp. 9 ff.
Top of Form

Final Form

1 .- AS OPERATING SYSTEM ADEQUACY OF PENALTIES IN CASE OF FRAUD REPEATED .-

Article 164 COT: When it was given various convictions against the same defendant, courts enacted after the first failures may not consider altering circumstances that have accumulated the processes have not been able to take into account. They must also adjust the penalty so that the range of penalties can not exceed that which would have corresponded been deemed crimes together.
Where the preceding paragraph, the court prescribed by the subsequent failure shall modify, ex officio or at the request of the affected, in order to adapt to the provisions therein.

1) Three aspects to consider: a) The following decisions may not consider altering circumstances of responsibility which have not been able to take into account a cumulative process (if one has been able to accumulate both processes and, not possible to apply summary procedure, not would be eligible for the mitigation of 11 No. 9 which, in the retrial was upheld only because it is a proc. abbreviated) … b) The penalty at the retrial over the death of the first trial (in a mental exercise) can not exceed as a whole, the penalty would correspond if it was judged all the facts in a single process (there will be two penalties, one for the first trial and another for further processing) … c) The court makes the following ruling is entitled to adapting to modify the sentence so that coupled with the first process, not to exceed the penalty that would have been appropriate if it were a single process (to be modified to adapt, only the second part).

2) The application of these rules would apply in a case several scams:

A) Penalty second trial (first trial sentenced to prison greater minimum):
– CP 468.467 legal penalty … .. imprisonment in its maximum degree
– Reiteration of the 351 increases CPP … 1 or 2 degrees (min. grade p.mayor media)
– 11 No. 6 and No. 9 CP 11 … … … 1 degree lower (more imprisonment grado.míni: 67 inc.4 CP
is optional for lower, 69 poorly produced extension
40 people, amounts …)

B) Pena in a cumulative process:
– Legal penalty of 468, 467 CP … …. Presidio less than
– Reiteration of 351 CPP … is increased by 2 degrees (42 scams consum. 1 staph frust)
– 11 N ° 6 offset 12 N ° 7 CP
– 11 N ° 9 unenforceable because it is in summary proceedings (407 inc. 3 CPP)
– Without modifying circumstances … most average prison

3) Therefore, the penalty in the second trial, in prison a greater degree in the minimum degree (5 years and 1 day to 10 years, applied to the maximum extent -10, by the extent of the evil, 42 people in Most old-NOT EXCEED the penalty that would apply if one has been substantiated by all the illegal process.

4) The exercise required by Article 164 of the COT is to adapt the penalty in the second process so that added to the penalty imposed in the first trial, not exceeding that resulting if it has been tried all offenses in a single cause, the legislature does not require penalties unify as in the prior art. 160 (now repealed by Act 19708 of 2001; there if that is required to unify the penalties) where necessary accumulation. Today, there is accumulation procedurally, then these are two distinct processes must be completed by different sentences, each with the corresponding penalty upon the adequacy of the penalty in the second process, in the manner described.

2. PURPOSE AND FUNCTION OF CRIMINAL LAW IN THE DISTINCTION BETWEEN conditional intent and guilt-AWARE OR REPRESENTATION Vivian Bullemore .-
PURPOSE AND FUNCTION OF CRIMINAL LAW IN THE DISTINCTION BETWEEN FUTURE AND GUILT DOLOAWARE
Vivian R. Bullemore G. ^*, John R. ^** R. MacKinnon Contents: 1. The purpose and function of the Criminal Law 2. Role of Criminal Law and theories of punishment 3. The central element of the subjective type of intentional commission of crimes: the fraud 4. Adequacy typical intentional crimes commission 5. Criteria for distinguishing between the possible malice and conscious guilt 6. The problem 6.1. Adapting the concepts of order and function to solve the problems of 6.2. Criteria for a solution: the distinction between impairment of value of action and impairment of value of output.
INTRODUCTION
To refer a matter under the heading, we must first refer to the problems of order and function of criminal law and punishment, and then outline the systematic aspects of subjective type of intentional crime was committed and, with a little more detail , a typical alignment of intentional crimes, in general. Then we turn to the review of the elements necessary to make distinctions that we offer a solution.
1. THE END AND THE ROLE OF CRIMINAL LAW ¹ Criminal law, not disputed in the doctrine, seeks an end to protection even though there is no consensus on the question of what must be protected. We discuss whether the purpose of criminal law is to protect legal rights or protection (of force) of the legal system. However, it should be recognized that this approach provides nuances. Thus there is a doctrinal sector considers that criminal law aims at protecting fundamental legal rights and protection as a secondary purpose of the enforcement of the rule, as the teacher holds the Autonomous University of Madrid, Rafael Alcácer Guirao ^2, and other important doctrinal sector also believes that aims to protect legal goods mediately, “in the immediate protection of the legal system that operates in terms of average length, as suggested by Hans Welzel ^3.
To understand these concepts, we must make some preliminary distinctions. When we refer to the end of the criminal law understand that we answer to the question of why they should be punished, or why there should be punishment. That is, we refer to the word order to indicate regulatory purposes, as distinguished from explanatory purposes. For them, rather respond to the question of what punishment or why there is a penalty, ie, historical or sociological issues, we use the word function. This distinction, which avoids falling into the confusion between being and ought to be criminal law and punishment, we can distinguish an empirical issue or event (function) of an axiological (end). This distinguished the doctrines of justification (the end) of the theories of explanation (function) within the meaning ascribed Ferrajoli ^4, criticizing the usual confusion of the doctrine when addressing these issues. So we understand that many times, when the doctrine speaks of the end of the criminal law, they are referring to its functions, and vice versa. For example, who argue sociological theories of punishment, presenting as doctrines of justification, acting in the so-called naturalistic fallacy, which leads to the derivation of the duty being of being in contravention of the law called Hume, that no conclusions can be derived logically moral prescriptive or descriptive or factual premises, and vice versa.
Therefore, briefly, one can distinguish the following alternatives:
a. Retributive point of view of the end of the sentence would be the answer to why you should punish, and a preventive point of view of the end of the sentence would be the answer to what to grieve.
b. In return, a remuneration point of view function of the penalty would be the answer to the question of what penalty, and a preventive point of view function of the penalty would be the answer to what it is worth.
This classification is enlightening because, as we have seen, the pay is a look back (why, or metaphysical function), and preventing a look to the future (for what, or social utility function). The latter is the reason that usually are related by some authors, erroneously, according to the concepts of prevention, identifying them.
2. ROLE OF CRIMINAL LAW AND THEORY OF PUNISHMENT
The first question to be addressed by the study of criminal law in force is the one concerning the role of standards in it. This is a response to the question: why or what sets the company organized in the state a set of rules that threaten the implementation of a sentence the execution of certain behaviors? In this sense, the role of criminal law and theories of punishment are closely related: the whole theory of punishment is a theory of what role the criminal law. In a simplified manner in classical thought, and bearing in mind the points made above, there are two lines of thought that seek an answer to these questions, on one hand it is argued that criminal law has a metaphysical basis, namely the realization of an ideal of justice (retribution), and secondly, that the criminal law has a social function (utility), characterized by the prevention of crime in order to protect certain social interests recognized by positive law (legal rights).
The role of criminal law is, in turn, linked in a very narrow conceptions of legitimacy. If held to be a function (self) of the State perform certain ideals of justice, criminal law is understood as a tool for justice value. On the contrary, if we understand that justice, in this sense does not lead to a state function will make use of other concepts of criminal law in which it will be understood differently. Usually, in this case, justifying the criminal law as a socially useful instrument, the value assigned to these functions will be the foundation of legitimacy.
At present the history of criminal law is expressed in the attempt to synthesize the two opposing views. The utilitarian criterion (social utility) is accepted in which mitigates the rigor of the principle of justice. For example, while supported with varying intensity, according to the laws, the aggravation of penalties for repeat and habitual offenders, there is no place, in general, the indeterminate sentence.
The answers about the nature of the sentence has been formulated as theories of punishment. However, it should be noted that theories of punishment are such only to the extent that the term theory is taken broadly.
Given the confusion of many authors between the concepts role and purpose of both the criminal law as punishment, and between compensation and prevention, to allocate normally (and wrong way) the term in order to pay, and the term function prevention, we must carefully examine each of the creations are often deceptively confusing concepts in the search for legitimacy.
Thus, theories of punishment should correspond to the following question: under what conditions is a legitimate application of a penalty?
3. THE CENTRAL ELEMENT OF SUBJECTIVE TYPE OF CRIMES COMMISSION intent: THE DOLO ⁵ Before you can answer the question that we formulate the end of the previous chapter, we review some concepts of willful criminality commission. As a first approximation, it noted preliminarily that a typical action can be executed with malice or by mistake not to both provisions of the will, because they are incompatible.
Mens rea in criminal matters differs greatly from fraud in civil matters. First, the criminal intent is a neutral concept, benefit, synonym, simply, the aim implicit in the act (or omission) typical, which is then judged in relation to grounds of justification (the view of illegality) and in relation to the subject’s culpability for his conduct (trial of guilt), whereas the civil fraud is always synonymous with malicious intent, aimed to infer damage or injury to another. Secondly, regarding the fraud penalty can be not only direct but also indirect or contingent, classification does not exist in civil matters. Finally, criminal intent may be directed to the commission of many typical acts against various legal rights, in circumstances that the civil fraud is directed only to damage (equity) or injury (honor) of people. The greatest opportunities for confusion often occur in contractual matters with the fraud (civil) as a vice of consent, which in most of the cases results in a criminal fraud.
The fraud can be defined as knowledge of the objective elements of nature and the will to fulfillment. That is, simply, knowledge and willingness to realization.
From the above is that distinguishes the cognitive element of volitional element of intent.
In the study of the cognitive element of intent, there are two important issues: first, that is what interests us is the content knowledge of the facts and must also highlighted the problem of type error.
3.1. Content Knowledge
In terms of content knowledge of the facts, it must be complete, extend both to the elements of actus reus and the altering circumstances of liability.
In terms of its intensity, there is a thorough legal knowledge that would offend only the lawyers but, as noted by Mezger, a parallel valuation in the area of the profane. Ie, only the knowledge of the layman. With respect to the intensity of knowledge is not required that all elements are, in the expression of Bacigalupo, in the center of focus of the author’s consciousness, it is sufficient that have been perceived by the author, for example, expression at night in the wilderness, or in place for the exercise of a cult.
As for the timing of knowledge of the elements of actus reus, it must be current, to be required now, the prior knowledge that has been the author and then forgotten, it is irrelevant in this venue. The knowledge acquired by the author after the completion of fact, or fraud subsequent subsequens-fraud, “is also irrelevant, not intentional becomes a fact that was not.
3.2. Kinds of fraud
From the point of view of the element of will, the fraud supports a triple traditional classification: direct malice, fraud and deceit eventual indirect.
a. The direct malice is characterized by the fact that the person knows what he does and wants what he does. The verification of the target rate is precisely the goal of the active subject. Peter knows that pointing the gun to kill John, want to do it and do it.
b. The indirect intent, also known as the necessary consequences or second degree, is a kind of direct malice, characterized by the fact of not being specifically targeted behavioral outcome, but it is done knowing that the result is certain and inevitable consequence it. Peter wants to kill John putting a bomb on the flight that took it. Peter acted with malice indirectly for the deaths of the two hundred passengers who accompany John on this trip, it deems necessary for its purpose.
c. The eventual intent reflects a complete indifference as to the possibility that the target rate or not produced as a result of the action. It is emphasized that the essential difference between the direct and intentional deceit is possible at both the cognitive and volitional. In the case of possible fraud, the subject is such a check as possible, but this does not stop to bring their action, carried out with indifference to that result.
If knowledge of the factual elements of the crime is imperfect, it is impossible that the individual truly wants verification of the crime, in a strictly criminal law, where love will import an efficient movement in order to achieve a specific goal . If John wants to burn the house to collect insurance Pedro, burning without being able to see if it truly is in it, play with eventual intent, as the verification of the crime of murder is also possible. Is the possibility of verification of criminal, from, for example, the imperfect knowledge of the factual circumstances, which allows us to establish the existence of possible fraud in a case. In fact, it never appears as an eventual goal requires the will of the subject and is not susceptible, the event, as such, if desired by the agent. The objective conduct of the agent is not found in that classic means-end relationship with respect to verifying the target rate, which characterizes the direct intent. Normally, this behavior is related to half with another goal (eg., Collect insurance), but not about the offense eventually verifiable.
Consequently, we can say that the radical difference between direct and eventual intent is that in the first verification of the target rate is the goal of the will of the subject and his conduct is the means chosen for such testing, while in dolus eventual verification of the crime is a foreseeable consequence of the agent’s conduct, but that is not expressly pursued by the agent, so that their behavior is not a method used to arrive at such a check, but a means to achieve other purposes, with the objective verification of the type expected only a collateral consequence and to which the active subject expresses indifference to the event to occur.
4. TYPICAL FITNESS FOR TORT OF CRIMES COMMISSION
4.1. ⁶ preconceptions The blame reckless or negligent act, so as to violate duties of care, either by omitting the course causal control adequately for who has the power to do so, or risk creating not allowed, predictable, and risk awareness socially appropriate, thus resulting in avoidable typical results (as they are required by type) and unloved. The subject acts demonstrating that there is a contempt for the legal interests protected criminally.
With the above definition implicitly recognize that the will plays a merely supplementary to the determination of fault, even though it is fundamental in the field of the distinction between intentional behavior and negligent conduct. This is because as it becomes clear that the concept of guilt is developed from a normative construction focusing on the duty. Today the central problem is the determination of intentional crimes of this duty, which is carefully against the risks that are created for the legal, and the criteria for determining precisely when such infringement is relevant to criminal law.
In this regard, the Criminal Code in its Article 2 states that the acts or omissions committed with intent or malice would import a crime, are tort if only fault in which committed, and Article 10 No. 13, which is exempt of criminal responsibility who commits a tort, except as expressly punishable by law. ⁷ Recently there has been progress in the study of intentional crimes, to the point that today it is commonly accepted distinction between objective and subjective, while still being discussed passionately about the problems of participation and allocation to the victim.⁸In the objective aspect of the breach of duty of care, the subject must be in a position to adopt the correct solution, the ability to carry out the action not created the danger. Here again we encounter the concept of middle man, which should take into account the specific capacity and the expertise to take the subject in question. This view, which is called individualized determination of recklessness, is rejected by those who adopt a purely objective concept, which dispenses with the special abilities of the author, but do take into account its special knowledge as Gosselaar. Instead, authors like Stratenwerth Bacigalupo and with whom we agree on this, consider that there is no reason for differential treatment between capabilities and expertise. On the contrary, as noted Bacigalupo, does not violate that duty of care according to their skills and knowledge, could not have foreseen the realization of the type ^11. Add to López Barja de Quiroga reported that as, if not taken into account the ability and special knowledge, it would be possible infringement of risk and subjective type of offense reckless ^12. What appears clear, but it should be stressed here is that special knowledge, as part of individual predictability, even when they are part of the breach of duty of care, they are in the subjective aspect of fault type, while individual capacities, as part of the breach of duty of care, they are in the objective aspect of fault type, the overall predictability (within the concept of risk allowed), for example, obtained by training capabilities, such as special parachute jumping instructor, the shooter’s choice, or entail physical skills instructor, dive guide or a mountain-climbing a mountain in the Andes or the Himalayas.
Here we also distinguish, as in the intentional type of commission, creating a risk not allowed and the realization of risk (attributable to the result, in the case of culpable of committing crimes result), on the terms previously studied.
Recall that for us the risk is grounds for possible exclusion of criminality (the risk that acts within the allowed no actions or omissions typical, although legally protected injury), as is also Welzel, Stratenwerth, and Bacigalupo, other Jescheck pronounced as ^13, in his Treatise on Criminal Law, in addressing the possible risks include among the grounds for justification, but now has changed its position, and only mentions it in this venue as included in each causal recognized. Therefore, it behaves within the tolerable risk does not make a typical behavior, or criminally relevant, even when there is injury or threat of injury to a legal right (to be atypical behavior, is just to say that it is not of a legally protected criminally, at least for that conduct, the risk that leaves allowed legally outside the limits of criminality and criminal protection).
Along with the doctrine of permissible risk, Roxin ¹⁴ states which delineates the duty of care to the so-called principle of trust, under which the care that puts the act must be confident that others will too, and spreading its effects when he attends the performance of several people. Especially in road traffic law, is now recognized that the denial is for an increase of unacceptable risk. Roxin himself gives an example saying that he has right of way at an intersection does not require slow down, trusting that others respect its law, although even drive drunk, the denial of impunity, in this case would involve unacceptable enactment of aVersari in re illicita. As we shall see below and on the allocation of their own risk generated, the victim, this example about the possible risk reinforces the systematic offer to the objection of the result who creates the risk, provided it is done in the result.
4.2.2. Elements of the actus reus
Here we are interested in only some aspects of objective type, especially the behavior and the main verb, the legal order and the result.
4.2.2.1. Fault action
Is that infringing the duty of care objective. For us, the duty of care is determined according to the theory of risk allowed. Not all risk from typical, but only one who exceeds the limits tolerated by the law, ie the subject is required to perform an action that exceeds the tolerable risk. The risk allowed itself excludes the typical behavior. Negligent action is studied based on the types of action calls.
4.2.2.2. The main verb
Within the target rate from the offense, obviously the first thing we find is the main verb, which is none other than that which is contained in the offense committed negligently. So if this is a wrongful death, obviously the main verb phrase will be referred to the killing. What happens is that in this case, another death occurs as a result of a breach of the duty of care. This is the mode of action that we clearly define the typical action.
4.2.2.3. The legal order
The criminal legal interests protected, reiterating general concepts should be worthy of protection, be in need of protection under criminal law and criminal law should be able to protect them. As to merit protection, we must not forget that the criminal support different senses in relation to the legal order may contain, which protects conduct that are assessed as suitable to injure, and that, through social assessment, are considered relevant to lift the criminal protection. That is, the merit of criminal protection of a legally be built both in the social value of the property and its importance, as the severity of the attack ^15. In the crime culpable breach of duty of care and creating a risk reckless aggression is not allowed to well-child legal entity that intentionally done, hence the sanctioning of criminal recklessness or negligence in our criminal law are very restricted. Regarding the need for protection, or quality of the legal need to be protected in criminal law, it must be a well that could not be protected adequately or effectively by other sectors of the legal system. As we shall see when dealing with the unconscious guilt in the subjective type, we believe that the protection of private sector management is sufficient in this case, being unnecessary the criminal protection of legal goods and unrepresented injured negligently. With regard to the ability of protection from the criminal sector of the legal system not only can be a material failure by scientific ignorance, but there are legal rights that are not susceptible to a real and effective protection, for example, cultural historical moment that is lived, as cases of modesty, decency, etc. We must not forget, of course, that the legal subject injured in crimes and crimes intentional negligence does not change.
4.2.2.4. The Causation
Objectively is attributed to the effect that the result (in the case of intentional crimes of results) can be normatively attributed to careless or reckless action. This is determined through a mental operation consists of estimating attributable “to the act or omission not allowed creative risk-if the result of the absence of the care required by law that had not occurred.
In addition to the result constitutes the realization of the risk created by the action, allocation criteria are used. The first, according Roxin ^16, is the increased risk theory, which states that it is necessary that the subject’s behavior has increased the possibility of production of the result compared with the risk that is acceptable within the range of tolerable risk. Also, as noted Gimbernat ^17, is used as a criterion for attribution theory in the field of protection of the rule according to which the rule imposing the duty is to avoid certain results, and not others, and when the result is not of those is outside the scope of protection, should deny the charge. Finally, we meet the criterion of the theory of avoidability, which is required to ask what would have happened if the person had acted in accordance with the standard. If he had acted according to it, however the result would have occurred, be denied the allegation. To Bacigalupo, ¹⁸ to effect the outcome of the complaint is sufficient that the action set to the duty of care might have prevented the production of the result, while others argue as López Barja de Quiroga ^19, which requires a high probability, rather than a mere possibility, of course, nobody requires absolute certainty. It also mentions the already mentioned principle of trust, which is instead a risk boundary, a method of allocating according to which must be accepted that the subject can consider that others will behave according to the standard.
4.2.2.5. The result
We refer to it in the terms in which the subject has been explained above, in the case of crimes result. This requires a little explanation. As noted above, the result is not an element of the actus reus of intentional crimes, except in cases where it is required by them. As in intentional crimes, crimes are premeditated and intentional crimes result of mere activity. Examples of intentional crimes of mere activity are found in the Penal Code offenses under Article 224, Article 225 N º 1, Article 228 paragraph 2, Article 229, Section 337 subsection 2, and in the absence referred to in Article 494 No. 10. Obviously we refer to the material result, not the law, which is injury to a legally protected criminally.
Thus, the result must be attributed objectively wrongful action. No answer the active subject rather than its own violation of the standard of care. If damage has occurred as a result of a negligent act or omission by the victim, it will be attributed to it (charged to the victim), so for example if your vehicle carelessly handled Pedro and moves at a crossroads streets despite having before him a signal indicating stop, and impacts to the vehicle that leads Juan, and this is driven as a result of impact outside the vehicle, seriously injuring Peter should not held criminally responsible for those injuries if John was driving omitting the use, by regulation requires all drivers, safety belt, since it is highly unlikely that the expulsion had the vehicle, and the resulting injuries, if any used. Other examples in the same direction may include the conduct of John with the vehicle’s lights off and night, loaded or stowed improperly or without authorization to go to load, etc.
4.2.3. Forms of guilt
The traditional classification of the forms of fault includes negligence, malpractice and incompetence.
The recklessness is facing a risk clearly not controllable, in breach of duty of care. In our Penal Code, Art. 490 is sanctioned recklessly, which is the most intense degree of fault to penalties, and corresponds to ignoring the most basic duties of care.
Negligence is facing a controllable risk, but that translates into a typical result of the lack of concern or care in the act. Usually marked by the Chilean doctrine is identified with the lack of care than the average man employed in the activity developed ^20.
Finally, the incompetence involves taking risks for which they are aware that there is sufficient preparation, it required special knowledge or skills.
Ultimately, the blame always involve a breach of the duty of care in life, a relationship that results in not adequately controlled causal courses, creating risks not permitted and may do so in order to prevent undesirable outcomes resulting in (typical .) Certainly, the absence or lack of proper monitoring of progress risks creating causal disallowed can be verified as a result of having generated or involved without taking adequate precautions to prevent diversion (culpable commission) or for failing to intervene, alter or discontinue this course causal , could and should do, but refraining from without fraud of any kind, but only for not being attentive to one’s duties to act (omission fault).
4.2.4. The subjective type
When we refer to the problem of subjectivity in the crime rate unwise, it is obvious that analysis flatly rejected the old notions of causation, typical of the early thirties of the twentieth century, even if those survive, especially in Latin America, the hands of some authors that such conceptions were formed during his youth. A systematic causalist know the distinction between objective and subjective type type and also the distinction between subjective objective duty and duty of care in the offense reckless. However, no matter how respectable they may be these views, as the authors’ personal beliefs that defend them today, after more than seventy years of evolution, only represent a local historical interest, so we will leave aside in this analysis.
For us, as we separated the study of such aspects or intentional in their objective and subjective sides also should distinguish between objective and subjective type type in the offense. While in the target rate is set as discussed so far, breach of the duty of care, Causation and result in subjective type analyze the cognitive and volitional elements.
Accordingly, we recognize, along with the existence of a target rate, a subjective offense, but with the proviso that question, as in intentional crimes, an educational division rather than real.
Usually distinguished, too, because of a subjective level, a positive element, namely that he wanted to make reckless conduct, and a negative, you did not want the author produced the result. Some authors, such as Garrido Montt ^21, in Chile, consider these elements, positive and negative, are the subjective type of intentional crimes, a position which, though respectable, it seems insufficient.
For us in the subjective type, it includes a cognitive element of guilt, namely the predictability of the typical outcome risk and knowledge of socially inappropriate, or ability-to know who submits a legally through their own behavior risky, and a volitional element, referred to the voluntary decision to maintain or neglected person’s conduct, despite knowing guilty conscious) the risk that the legal subject, believing that they can avoid it, or the mere duty to know, but not being conscious, “because if it is not possibly avoid it, unconscious guilt believe that, as discussed below, must be considered with impunity).
It is here in the subjective type of intentional crimes which include special knowledge of the subject asset, which enhance the possibility of providing the typical result of knowing the risk or socially inappropriate created by the risky action infringing the duty of care. For example, a computer expert by a bank system, the greater the possibility of knowing the risk and predict the outcome to support the checking account information in an easily corruptible to information overload, producing loss thereof.
From our point of view is the following scheme:
Predictability (The typical result)
Cognitive element
Knowledge
(From Risk socially inappropriate)
Subjective type
Know the risk
Volitional element fault cpnciente
(Decision, though)
Mere duty, not knowing
unconscious guilt risk)
Moreover, this scheme and is an elaboration on the recognition of the undeniable importance of the offense. Criminal proceedings for criminal negligence “in relation to the attacks against the individual in its physical conditions, where clear-come far exceed in number and frequency to those who are intentional crimes. This is very logical if one considers that the conduct is intentional crime considerably more marginal and, therefore exceptionally, for the offense. Murder or revenge killings committed with malice, are much less frequent events that occur daily deaths resulting from traffic accidents. Is the increasing importance that some authors have raised the need for a special criminal law to blame, a position that we agree.
4.2.5. Species of guilt
4.2.5.1. Conscious guilt (or representation)
It represents the subject as possible the result, knows the danger created by their conduct, and yet, he acts. In this case, trusting that it can avoid the result and rejected the possibility of occurrence. This categorical rejection of the result is what is the difference of potential fraud.
4.2.5.2. The unconscious guilt
Here the subject does not even represent the result. That is, does not foresee the outcome, even though, of course, is predictable. A classic example of this situation are called crimes of neglect. It is therefore considered to comply with the subjective type if your circumstances could and should know the danger of his action. Is so thin the blameworthiness of the action, which can only be devalued with strict regulatory criteria, comparing the action taken with the subject should and could have done, which is discussed by some authors for their criminality. In this sense, Bacigalupo ²² stated that it is not certain that the instigation of unconscious guilt is compatible with the principle of guilt, indicating that the author is not in danger of his action can hardly be motivated to correct the course of the same.
As can be seen in the crime manslaughter is gradually reduced the cognitive element, with respect to possible fraud, and then unconscious guilt, therefore it is called again without representation, “is vague, the disappearance, the element of will.
For us, the call goes unpunished unconscious guilt. This mainly for two reasons. Criminal law should not protect the most valuable legal rights to attacks, although injured, they have no relevance or severity, and therefore lack of the need for protection, provided that the legal order through the civil or private sector thereof.Then, and as the main reason, the minimum level required in the crime rate subjective fault is that the active subject is rendered the danger of his conduct, and not as subjective type level in the intentional crime, which represents the objective-type items, that is, it should be possible to represent the risk created by the conduct. If there is no predictability of the typical result, knowledge of the risk or socially inappropriate, it would violate the principle of made-to punish the perpetrator to be, not to do-and the principle of legality in general. If the risk is not represented, can not possibly believe evade, or attempt to elude, becoming a must do not know. Invincible ignorance of the prohibition or mandate excludes criminality and, therefore, the wrongfulness of conduct. It is not, as claimed by Bacigalupo, a breach of the principle of guilt-because of the view that the subjective element of duty of care is rooted in guilt, like Welzel, but a problem of subjective, and the importance of it to establish the relevance and level type of conduct prohibited.
Another interpretation that did not preclude the instigation of unconscious guilt would undermine the principle of the act, and the constitutional prohibition of presuming the guilt, and against the most reasonable contemporary interpretations of Article 1 of the Criminal Code, which limits criminal liability to cases of awareness of the wrongdoing, actual or potential. If the actor can not be represented, or even potentially the wrongfulness of his actions, his conduct must be punished. You can not impute any, that are the most known cases of unconscious guilt. As discussed in the following paragraph, this is not a minor matter.
5. DISTINCTIONS BETWEEN CRITERIA AND POSSIBLE DOLO conscious Guilt
The biggest problem with the eventual intent is the demarcation of laculpa or recklessness concienteBásicamente distinguish between theories that place emphasis on the volitional aspect of intent (theories of the will, consent or acceptance) and that emphasize the intellectual (theories representation or probability).
a. In the theories of representation, it is estimated that conditional intent when a person has represented the verification of the outcome (even better and more precisely, the verification of the target rate) as very likely, because it is argued, acting not But know that the target rate will probably be checked, not least in its willingness to accept such a check. There is criticism that there are specific cases in which the active subject, however represented as highly likely the result of production or verification of target rate, by no means accepted in his will that any check (in the case of the physician who assumes the risk an operation without adequate hygiene means in an attempt to save the life of a wounded man in the wilderness).
b. The theories will deem to be demonstrated, obviously through external means, that the active subject, indeed, has accepted the will, with indifference, any objective verification or production rate of the outcome, a fact that is independent of the degree probability that the subject has shown that verification or production.
Within these theories of the will, are hypothetical and positive theories of consent. The first points to be estimated conditional intent that exists if the subject had known that the result would occur (or the target rate would be verified) surely would have acted anyway (in other words, acted with malice who also possible have acted with malice indirect). For the positive theory of consent, simply must work with the situation effectively volitional subject, appreciated from external data, in the sense of whether expressed a genuine indifference to the possibility of producing the result or objective verification of the type: this occurs it happening one way or the other, no matter, I act like (Frank).
c. Other concepts. In modern penal doctrine have made efforts to achieve better classification criteria. Thus, for example, to Stratenwerth, if the subject was taken seriously the possibility of realization of the objective elements of nature and, however, the action took place, there would be conditional intent, whereas, if he trusted, by light or recklessness, that the conduct did not occur type, there would be a conscious recklessness. Have embraced this approach, among others, Jescheck, Wessels, Roxin and Rudolphi, Germany, and, similarly, Zugaldía Espinar, Spain. Contrary to pronounce Cerezo Mir, who believes that harms people scrupulous, conscientious and responsible and promotes, instead, the careless or selfish, that reflects and therefore not taken seriously the possibility of realization of the type.
Thus, we conclude, following the Spanish professor of Cadiz, Hava Esther Garcia ^23, traditionally the majority doctrine had been understood that although the conditional intent has in common with the guilt aware that the author is represented as possible to perform the type, reveal willful misconduct, against the reckless, an excess of seriousness of the offense materialized in a more or less intense than do the typical fact, while another doctrinal industry, originally very much a minority, began to deny relevant to volitional element when classifying a behavior as intentional. However, none of these doctrinal positions were able to provide unambiguous criteria while fully successful in delineating the proper scope of possible fraud against the recklessness: a, by assuming the occurrence of a subjective element so difficult prove as willing to do a particular type of crime, others, precisely because without the element of will and focus exclusively on content of any fraud in the cognitive element. Given this perspective, modern contributions have chosen two different ways: the first one is characterized by attempts to re-define or, if you will, soften the volitional element, in order to justify even in some conditional intent presence of this component, while the second does disappear for the content of the fraud itself, enriching and qualifying in place, the cognitive element to make it the only valid criterion of demarcation against imprudence.
6. THE PROBLEM
6.1. Adapting the concepts of order and function to solve the problems
The consequences of adopting one position or another are not irrelevant. If part of a dualistic, which are maintained to some extent the components traditionally awarded to the intent (that is, knowledge and will) be possible to differentiate the two classic categories of negligence and conscious and unconscious guilt) and figures outside the environment of the misconduct, to circumscribe it and affirm the exceptional nature of the punishment of laculpa conceinte. In contrast, if accepted a monistic view, that sees the fraud as pure knowledge, the distinction between conscious and unconscious guilt negligence (or fault with and without representation) will lose much of its meaning, to the extent that the first category integrate within the content of any fraud, leaving as the only possible modality of the unconscious culpable commission. The political-criminal consequence of this second option is clear: behaviors that have traditionally been rated, and if punishable as reckless (although the subject to represent the possibility of the result) should now be considered malicious, its punishment far from being exceptional, would worsen and become mandatory24. Obviously, we reject the second possibility, the apparent breach of the principles of legality and culpability.
6.2. Criteria for a solution: the distinction between impairment of value of action and outcome disvalue
The Criminal Law as a legal sector, consists of a set of legal rules, as they integrate other sectors that contain a rule of conduct imposed on citizens by a mandate to make or omitted, and the threat of a criminal penalty for those who disobey the mandate.
The criminal law contains value judgments about a particular event, and that by associating a penalty to his execution-or omission-is making a trial of impairment of value on it. In this sense, the criminal standard is objective standard of assessment. But in addition to the criminal provision contains an imperative to press on the antisocial tendencies of the individual, thus functioning as a factor that should motivate the socially adjusted human behavior. As criminal law punishes violations of legal norms, we talk about impairment of value of action.
If we say that criminal law is a legal industry, it is punitive in nature, so it is aimed to regulate human relationships and manage the social structure to allow coexistence, protecting certain fundamental values for the individual and the community of which it forms part, by the injunction of sanctions or the establishment of security measures against those who violate them. These values are the goods which are necessary to the individual or the community for its implementation and development. As these assets deserve the protection of law, are called legal rights.
Of the values that affect the individual and the community and deserve protection in other branches of law, criminal law does not excuse all his “particularly strong” protection, but only the most fundamental: those whose injury or endangerment disturbance is essential to the foundations that make possible the coexistence of men. Nor should protect against any attack, but only to those who, because of its special intensity or modality are more intolerable to live with. As criminal law aims to protect legal rights, your injury or endangerment disvalue talk about outcomes.
Well, we make the following question: What is the relationship between the impairment of value of action and result in impairment of value of the categories of criminal negligence and willful misconduct? In both categories of crimes, we can observe in the target rate that produces the same impairment of value of result, that is, injury or risk of injury to a legal right. However, the impairment of value of action differs, since it is more desvaliosa breach of the standard as accepted by the plaintiff in the case of willful misconduct ^25.
So it turns out that, in matters of criminal law the end, who put emphasis on the protection of the validity of the rule should also be in favor of making the impairment of value of action prevail over the value of result and, conversely, those who put the emphasis on the protection of legal rights should give primacy to impairment of value on the outcome of impairment of value of action to present a position of systematic coherence in their tenets. For example, we have the point of view of functional authority, as Jakobs ^26, for whom the primary purpose of criminal law is to protect the validity of the rule and, therefore, focuses his arguments on the impairment of value of action. However, when it comes to arguing about the distinction between conscious intent and guilt eventually does not include these arguments, since in its search for a concept of conditional intent based on knowledge alone ignores the profound contradiction incurred, by neutralizing Action disvalue disvalue giving priority to outcomes.This is because if it is considered as the impairment of value of an act done with conscious guilt and another made with any malice, it neglects the structural differences between the standard and the mandate contained therein, because it is not conscious and disobedience aware that the fault dear and unloved.
Well, that’s why we can not disregard a priority by impairment of value to another, as there are cases that show, like the distinction between conscious and intentional fault possible that both the impairment of value of action as the impairment of value of result have a role to play in the grounds of criminal law. We can not defeat the purpose legal conservator has criminal law, assigning as sole purpose to the detriment of the impairment of value of action to contain any illegal, since the commands and prohibitions are part of the essence of punitive legal sector, and more than mere indicators of a preventive purpose. Facing the constant threat of abuse of the right to punish state-for example, the types of strict criminal liability, are infringements of the rules contained in the criminal types that make up the type and are guaranteed by our State Constitution.
We recall here, regarding the distinction between intentional crimes and intentional crimes, previously formulásemos questioning the theories of punishment: under what conditions is a legitimate application of a penalty?
Our answer is that, for the application of a penalty in cases that are close to the boundaries between criminal negligence and willful misconduct is appropriate, according to the purposes and functions of criminal law, use the double argument and action disvalue impairment of value of output. This is because it is not possible to sustain the application of a penalty on an intentional when there is less impairment of value of action, that is, when the element of will in the subjective type, based on the voluntary decision to maintain or neglected person’s conduct, despite know the risk to undergo criminal legal goods protected, the belief is to avoid danger or injury, the active subject is not intended to and does not want the violation of the rule.
^* Director, Department of Criminal Science, Faculty of Law, University of Chile. E-mail: vbullemo@derecho.uchile.cl
^** Assistant, Assistant to the Chair of Bullemore Professor, Department of Criminal Science, Faculty of Law, University of Chile. E-mail: jrmackinnon@yahoo.com
¹ Cf Bullemore G., Vivian and R. MacKinnon, John. Purpose and function of criminal law and punishment: theories of punishment. Annals of the Faculty of Law 5 th season (1) 2004: 13 to 33.
² Alcácer Guirao, Rafael. The purposes of criminal law. Liberalism and communitarianism in the justification of punishment. Ed Ad-Hoc. Buenos Aires. Argentina. 2001. P. 258. While (that) the effective protection of legal interests will always protect the operation of the rules, because the end is that they are in fact respected the role of force protection, but it may take to those that depart respect of a previous stay in it, per se implies no effective legal protection of property, but only the belief that this occurs. Materially, then, the satisfaction of both tasks can only be achieved when presuming primary purpose of the protection of legal rights. … opting for one purpose or another as telos of criminal law has to pay particular attention to evaluative criteria of legitimacy, according to which, from a liberal conception, primary purpose must be the protection (of) the immediate individual interests-security material goods legal, “and only complement the cognitive safety protection, which can be understood as well mediate for citizens…. In conclusion, the preventive purpose of criminal law, in addition to garantístico order to protect individuals against state violence, lies primarily in the protection of legal rights, and only secondarily to protect the validity of the norm, for , as already stated, closely linked functionally, although not entirely reciprocal. So, make sure the expectations operate as an end in itself, while the second order, but also as a means-given its promotion of respect for the rules-to achieve the main aim of the protection of legal . Cf Alcácer Guirao, Rafael. The concept of crime: Injury of the legal duty or injury? Ed Ad-Hoc. Buenos Aires. Argentina. 2003. Pp. 143 et seq.
³ Welzel, Hans. German criminal law. General Party. 11 th edition. Trad. Juan Bustos and Sergio Yáñez. Jurídica de Chile Ed. 1976. Pp. 12 ff. The central mission of the criminal law lies, therefore, to ensure the validity of these values unwavering act by the injunction and punishment for failure to observe fundamental values expressed legal act effectively. … The right to punish non-compliance effective values of the legal awareness, while protecting the legal rights to which are referred to those values act. … However, the primary mission of the criminal law is not the current real legal protection, ie protection of the individual person, their property, etc. Well, actually it enters into action, usually it’s too late. More essential for the protection of certain specific legal rights is the task of ensuring the effective exercise (enforcement) of the securities act of legal consciousness, they constitute the most solid foundation that supports the State and society. The mere protection of legal rights has only a preventive purpose, police and negative character. By contrast, the deeper mission of the criminal law is social and ethical nature of a positive nature.
⁴ Cf Ferrajoli, Luigi. Criminal law minimum. In: Prevention and punishment theory. Legal Ed Santiago ConoSur Ltda. Chile. 1995. pp. 25-48. Page 26: A methodological defect can be seen in many of the answers to the question “why punish?, Is the confusion in those falling between function and purpose, or between being and the penalty must be , and the consequent assumption of the explanations and justifications or vice versa. This confusion is practiced above all by those who produce or sustain the philosophical doctrines of justification, presenting them as theories of punishment.
⁵ Cf Bullemore G., Vivian R., MacKinnon R., John R. Criminal Law Course. Volume II, Theory of Crime. 2 edition. Ed LexisNexis Chile. 2007. Pp. 40 ff.
⁶ Cf Bullemore G., Vivian R., MacKinnon R., John R. Criminal Law Course. Volume II. Ob. cit., pp. 50 ff.
⁷ In Chile governing the system of numerus clausus, ie, only exceptionally culpable conduct penalty, and generally only in crimes against persons (articles 490 and following of the Penal Code). It provides a system of criminalization of negligent conduct so-called mixed, inherited from the Spanish Penal Code of 1848, and interpreted as crimina fault, as opposed to culpae crime. This requires a little explanation. Culpae crime system implies that assumptions are numerus apertus reckless, with general provisions for punishment, while the system is guilty of the crime crimina reckless as to its typing technique, similar to intentional crime, accepting only types concrete.Obviously, breach of the principle of limitation, culpae crime does not respect the principle of legality, sometimes reaches absurd. We must clarify, though, that in the Chilean Penal Code are general clauses, but bounded, as in the case of crimes against persons (Arts. 490, 491 and 492). The argument of greater weight that tips the scales in this area in the sense of interpreting the criminal reckless as crimina fault lies in the necessary connection that should exist between the hypothesis with the hypothesis intentional fault, which is typically described with respect of general clauses. And we must not forget the many types negligence that under the Penal Code, such as in Articles 224 No. 1, 225 No. 1, 228 paragraph 2, 229, 234, 243, 302, 329, 333, and 337.
⁸ Cf Bullemore G., Vivian R., MacKinnon R., John R. The offense manslaughter and four problem areas: the subjective type, error type, the attribution to the victim and participation. Journal of Criminal Procedure. Santiago, Chile. December 2005 (42). Pp. 9-29.
⁹ López Barja de Quiroga, James. The offense reckless Penal Code 1955. Judiciary. 2nd time (40) October-December 1995. Ed the Supreme Judicial Council. Madrid, Spain. 1995. Pp. 215-245.
¹⁰ Maurach, Reinhart. Criminal Law: General Part. Updated by Karl Heinz Heinz Gosselaar and Zipf. Translation of the 7th German edition by Jorge Bofill Gensch. Ed Astrea, Buenos Aires, Argentina. 1995.
¹¹ Bacigalupo, Enrique. Principles of Criminal Law, general. 5 th edition. Ed Akal, Madrid, Spain. 1998. P. 244.
López Barja de Quiroga ^12, op. cit., p.. 230.
¹³ Jescheck, Hans-Heinrich. Criminal Law Treaty. General Party. 4 th edition. Trad. José Luis Manzanares Samaniego. Ed Comares. Granada. Spain. 1993. Pp. 537 ff.
¹⁴ Roxin, Claus. Criminal Law. Party general. Volume I. Fundamentals. The structure of the theory of crime. Trad. of the 4th German edition by Luzon Diego-Manuel Peña, Miguel Díaz García and Javier de Vicente Conlledo Remesal. Ed Civitas, Madrid, Spain. 1999. Pp. 1004 et seq.
¹⁵ Cf R. MacKinnon, John R. Ownership and participation and the crime of receiving stolen goods. Ed LexisNexis, Santiago, Chile, 2004, p. 3. This object of protection, or legal, is not only an object of minimum match but a guiding principle in the interpretation of criminal law, is defined by the interpretation in the context of the possible meanings supported by the wording of a offense. If interpretations are dyed by the nuances and subjective interpreter, within the framework of the possible meanings in the wording of the text, which in turn, is defined by the social context in which it is, from one to another-the interpreter and the text-it is possible to require a screen that gives overtones of rationality to the process. In this filter guarantees premium penal system developed in the modern liberal and democratic state of law. That is, the set of basic principles of criminal law (which can also be read as intersubjectivity) refer not only to the interpretation of the criminal, but the interpretation of the legal order that the interpreter is mentioned (protected) in them. In short, these behaviors that we mentioned above (valued as good) are, in turn, the object of the rule, which in turn is defined legally, which in turn may (or may not) be, in whole or partly of a criminal offense. The same concept: Bullemore G., Vivian R., and R. MacKinnon, John R. The failure of prohibition and penal reform. Revista de Derecho, Pontificia Universidad Católica de Valparaíso. XXVI, 2005, semester I, Ed Valparaiso University: pp. 101 et seq., And note No. 23).
¹⁶ Roxin, op. cit., pp. 1001 et seq.
¹⁷ Gimbernat Ordeig, Enrique. Crimes qualified for the outcome and causality. Ed Centro de Estudios Ramón Areces. Madrid, Spain. 1966. Pp. 135 et seq.
¹⁸ Bacigalupo, op. cit., p.. 246.
López Barja de Quiroga ^19, op. cit., p.. 233.
²⁰ Cf Garrido Montt, Mario. Criminal Law. Volume II. Theory of Crime. Editorial Jurídica de Chile, Santiago, Chile. 3 rd edition, 2003. P. 173.
²¹ Cf Garrido Montt, Criminal Law, op. cit., p.. 165.
²² Bacigalupo, op. cit., p.. 250.
²³ Hava García, Esther. Any conscious intent and guilt differentiating criteria. [Online] Criminal Law Directory. Peruvian Association of Penal Law. 2003. Pp. http://www.unifr.ch/DerechoPenal/anuario/03/Hava.pdf> 111-146 [accessed 17 March 2008]
²⁴ Hava, op. cit., p.. 113.
²⁵ Moreover, if accepted the view of the proponents of purely cognitive theories of fraud, be it practical expression in penal matters involve an unacceptable increase in punishment for many crimes. For example, a wrongful death, guilty conscious carries a maximum penalty of imprisonment in the medium degree (from 541 days to three years in prison), while the penalty for manslaughter (with conditional intent) leads to the minimum penalty of imprisonment in its minimum degree (five years and one day to ten years imprisonment). Consequently, to accept the purely cognitive point of view, threaten the commission of manslaughter by a minimum penalty two degrees higher than the maximum currently in effect, breaking with all proportionality in penal matters.
²⁶ Cf Jakobs, Günther. Criminal law, general. Fundamentals and theory of the complaint. Trad. Neck Joaquin Contreras and José Luis Serrano Gómez de Murillo. Ed Marcial Pons, Madrid, Spain. 1995. Pp. 9 ff.
Top of Form

Final Form

Criminal Law: Understanding Intent, Guilt, and Punishment

Operating System Adequacy of Penalties in Case of Repeated Fraud

Three Aspects to Consider:

Application of These Rules Would Apply in a Case of Several Scams:

Purpose and Function of Criminal Law in the Distinction Between Conditional Intent and Conscious Guilt

Introduction

The End and the Role of Criminal Law¹

Role of Criminal Law and Theory of Punishment

The Central Element of Subjective Type of Crimes Commission Intent: The Fraud⁵

Content Knowledge

Kinds of Fraud

Typical Fitness for Tort of Crimes Commission

Preconceptions⁶

Elements of the Actus Reus

Fault Action

The Main Verb

The Legal Order

The Causation

The Result

Forms of Guilt

The Subjective Type

Species of Guilt

Conscious Guilt (or Representation)

The Unconscious Guilt

Recent Notes

Subjects

Publicidad

Criminal Law: Understanding Intent, Guilt, and Punishment

Operating System Adequacy of Penalties in Case of Repeated Fraud

Three Aspects to Consider:

Application of These Rules Would Apply in a Case of Several Scams:

Purpose and Function of Criminal Law in the Distinction Between Conditional Intent and Conscious Guilt

Introduction

The End and the Role of Criminal Law1

Role of Criminal Law and Theory of Punishment

The Central Element of Subjective Type of Crimes Commission Intent: The Fraud5

Content Knowledge

Kinds of Fraud

Typical Fitness for Tort of Crimes Commission

Preconceptions6

Elements of the Actus Reus

Fault Action

The Main Verb

The Legal Order

The Causation

The Result

Forms of Guilt

The Subjective Type

Species of Guilt

Conscious Guilt (or Representation)

The Unconscious Guilt

Recent Notes

Subjects

Publicidad

The End and the Role of Criminal Law¹

The Central Element of Subjective Type of Crimes Commission Intent: The Fraud⁵

Preconceptions⁶