Theory of Crime and Degrees of the Punishable Act in Criminal Law

Posted on May 19, 2024 in Law & Jurisprudence

Criminal Law: General Part

Theory of Crime

This section of criminal law studies offenses and their implications. To determine whether an act is an offense, we analyze the following elements:

Conduct

Typical – Unlawful – Reproachable – Punishable

  • Note: Behavior is not part of the Theory of Crime.

Action

Several theories explain how to determine the presence of this element:

  • Causal Theory (Scientific – Naturalist): Precursor von Liszt.
    Conditions: Conduct by a man voluntarily to produce noticeable changes in the world around him.
    CAUSE – EFFECT
  • Final Theory (Voluntary): Precursor Hans Welzel.
    Conditions: Reasoning ability of the agent. Intention was to make the human being and get a result.
    CASE – FIN
  • Review: These two theories give a reasonable response in the case of stocks, but not the omissions. Currently, the causal theory is used in cases of misdeeds and final theory in fact intentional.
  • Social Theory: Precursor Jeshtack.
    Conditions: All behavior is socially relevant action for the good law.
    Review: This theory is still in development. You cannot set a uniform standard on the relevance of a behavior. Explains omissions.

Exclusion of the Action

  • Juggernaut
  • Personal Nature: Self-force agent. (Cases of avalanche).
  • Nature: Physical phenomena of nature.
  • Reflex movements.
  • Unconsciousness: Sleep. Hypnotism. Sleepwalking.

In all these cases, ACTIO RELEASE IN CASE prevails, involving rolling back the act until the moment before unconsciousness.

Typical

  • Objective: Understand the external factors beyond the control of the author. Description of behavior in the law.
  • Subjective: Includes internal parts and volunteers of the author.

Criminal Structure

  • Active Subject: Author
    • Indeterminate: You do not need a special quality.
    • Qualified.
  • Debtor: Victim
    • Undetermined.
    • Qualified.
  • Conduct:
    • Activa.
    • Omission.
    • With special arrangements.
  • Completion:
    • Result.
    • Potential for results.
  • Penalty:
    • Crime.
    • Crime.

Objective Criminal Type: Prosecutable Acts

  1. Subjects.
  2. Results: Injury or endangerment of the legal.
  3. Causality: Relationship conduct – result. Link author – result.
  4. Mode: Embodiment of behavior.

Analysis: Parts of the Criminal Objective

  • Legally protected:
    • Object.
    • Subject: Active (author). Liabilities (Victim).
    • Governing verb + subjective element (intent) tacitly.
    • Conduct.
    • Causation (tacit).
    • Result.
    • Mode (using, so): Answer the question How?
    • Other forms of time and place (implementing rules).

Subjective Criminal Type

  1. Dolo: To know and love all the elements of the target. Not required to know the rule about that fact.

    WANT

    KNOW

    Security

    Probability

    Long

    It directly. Grade 1.

    It directly. Grade 1.

    Not long

    It directly. Grade 2.

    Dolo Eventual

    Guilt

    INTENTIONALLY = Dolo Direct.

    KNOWINGLY. FOR SURE = Dolo Indirect.

    Author knows and loves the realization of A as a means to produce B.

    INTENTIONALLY + KNOWINGLY = Excludes Dolo Eventual.

    Dolo possible: Possibility of producing a result that the author does not care or does not care. Its existence eliminates indirect intent.

    TYPE OF CRIMINAL SILENCE = It supports any type of fraud.

  2. Fault: Recklessness + Lack of duty of care.
    THE DIFFERENCE BETWEEN THE EVENT AND GUILT DOLO is the lack of will that exists in the latter.

Criminal Types of Omission

In the grounds, there is an ongoing failure to be avoided or discontinued.

Types of Omissions

  1. Own:
    • Simple.
    • Stop doing something that is bound to do no matter the outcome.
    • They are typed directly.

    Example: Article No. 181: Violation of duty to keep books of trade.

  2. Unfit:
    • Commission by omission.
    • Avoid the expected outcome in the criminal action.
    • Agreement with another article.

    There is a tripartite division:

    • Own.
    • Improper.
    • Own to avoid the result.

Typical Elements of Negligence

All omissions

  1. Typical situation of duty generator.
  2. Failure to carry out the action. (All possible).
  3. Capacity for action.

Own to avoid omissions result

  1. Allocation objective outcome to avoid.

Improper Omissions

  1. Position of guarantor: Situation in which a person is specifically required to avoid the outcome.
  2. Equivalence between action and omission.

Sources of the Guarantor

  1. Law (officials, public officials and elected).
  2. Voluntary acceptance. (Contracts)
  3. Interference: Fact previous causal.
    • Unlawful.
      • Lawful.
  4. Community life. (Spouse and family relations).
  5. Social coexistence.
  6. Community of danger.
  7. Healthy sense of the German School (Kiel).

Limits to the Position of Guarantor

  1. Beware of a legal property.
  2. Care for a source of danger.

Unlawful

Unlawful: Involves no grounds for justification.

TYPICAL BEHAVIOR unlawful unlawful act = UNJUST – ILLEGAL

It is important to determine whether unlawful conduct is typical to determine:

  1. Application of.
  2. Liability pop act.

NO NEED TO BE TYPICAL BEHAVIOR reproach or PUNISHABLE FOR THE IMPLEMENTATION OF 1 AND 2.

Unlawful

Wrongfulness

Absence of a justification

Typical behavior and unlawful

Causes of Justification

Types permissive in certain situations which allow:

  • Performing acts prohibited.
  • Facts do not have to.

Categories

  • Expressed in the Criminal Code:
    • Self-defense. (Item No. 19): Real very personal. Present danger. Unlawful conduct.
    • State of Necessity Proof. (Item No. 20), opposed to legal. Results cannot be avoided otherwise.
    • Vicarious death of the fetus. (Item No. 109): Necessity disculpante.
  • Tacitus:
    • Compliance with a legal duty.
    • Legitimate exercise of a right.
    • Consent. (Some cases).

There is much discussion about the cause of justification called obedience, but argues that if it is lawful would fit inside IMPLEMENTATION OF A LEGAL DUTY illegal and if it would be justification, but when it leads to an ERROR BAN.

Reproach: Social disapproval based on the ability to know the fact is unlawful and act upon the rule.

Error Ban

Lack of knowledge about the illegality of the action that cancels or reduces the culpability or blame.

  • Avoidable: Existence of a chance of saving the error. Mitigate punishment (Article No. 67).
  • Inevitable: Impossible to save error. There is no culpability.

Ownership and Participation

These are forms of intervention in the offenses.

Authorship: Author.

Participation: Participants – Instigators – Accomplices.

Concealment: Making a done differently, is a type of post support crime.

Authorship

  • Theories:
    1. Theory formal objective: Direct perpetration. Realization of the conduct described directly.
    2. Subjective Theory: Animus auctoris. Wanting to make the fact itself.
    3. Theory of the total consideration: The primacy of the subjective element. Animus.
    4. Theory objective material: Mastering the fact.
  • Elements:
    1. Mastery over the fact.
    2. Special circumstances: If you do not meet the quality required by the type is not the author but a participant.
  • Classes:
    1. Direct: Making yourself.
    2. Mediate: Conduct by another.
      • Instrumentation of another person.
      • Use of behavior without fraud, illegality or culpability.
    3. Co-authoring:
      1. Existence of two or more people.
      2. Concurrence of wills.
      3. Contribution goal.
      4. Codomain of the fact.

      NO co-authorship in the misdeeds AUTHORSHIP MAY BE ONLY SIMULTANEOUS.

Participants

  • Instigator: Induces another to commit an intentional unlawful act. Its influence must be decisive. It has the same penalty as the author.
  • Complicity: Help.

Stages of Implementation of the Act

  • In preparation:
    • Indispensable contribution complications (character needed).
    • Dispensable contribution complications (secondary character).
  • During implementation:
    • Indispensable contribution: Co-author (domain).
    • Dispensable contribution: Accomplice.

    No special circumstances accomplice = Double attenuation (Item No. 67).

Participation in Accessoriness
  1. Iter criminis: Home run.
  2. Grades accessoriness:
    • Minimum: Implementation of behavior.
    • Media: Making the unlawful act.
    • Maximum: Performing the unlawful act and reprehensible.
    • Hiperaccesoriedad: Made characteristic unlawful, reprehensible and punishable.

Degrees of the Punishable Act

Tentative: A degree of execution of the offense.

Grades

  1. Ideation, Thought. Is not punishable.
  2. Preparation: Meeting of elements. Punishable only as an exception (Art. 270 and 271 of the Criminal Code).
  3. SINCE THE ENTRY INTO THE FIELD OF THE SHARES ARE PUNISHABLE ATTEMPT
    Tentative:
    • Running Start: Author starts any action tending to result.
    • Term of Execution: Author performs all actions.
    • Loss of control over implementation.
  4. Completion.

NOT MAKING ALL ACTS TENTATIVE IMPLEMENTATION = unfinished.

PERFORMANCE OF ALL ACTS TENTATIVE IMPLEMENTATION = FINISHED. (Results not caused by factors outside the author).

Order for Analysis

  1. It starts with the subjective type.
  2. Conduct.
  3. State objective.
  4. Mental representation of fact.
  5. Type purpose incomplete.

Attempted Incitement: Incitement is not completed.

Consequences of Offenses

Purposes of Punishment

1 – Positive special prevention.

  • Social Rehabilitation: Avoiding new offenses.

2 – Preventing generally positive:
a – Protection of society: criminal legal goods protected.

Penalty Basis = reprehensible.

Grading: Pena is proportional to the blameworthiness.

Basis for Action: typically + illegality.

Graduation: Harm (or potential). Degree of danger.

Measurement of Sentence

Criteria Division. Item No. 65. subsection 1.

  • Blameworthiness.
  • Effect of life in society.
  1. Phones and ends: What did the author?. Why? –
  2. Attitude towards the Law: Social participation in all areas.
  3. Criminal Energy: Obstacles to overcome in order to commit the act.
  4. Degree of illicit: typically + illegality. Position of the author (who is?. What are your obligations?.).
  5. Form at: Treachery, cruelty and other factors of violence. Importance of harm or danger.
    The embodiment NOT TAKEN INTO ACCOUNT IF THERE IS METHOD IN THE LEGAL BACKGROUND.
  6. The author’s earlier life.
  7. Conduct following the event.

To Make the Measurement of Sentence Should Be:

1 – Determine offense.

2 – Determine the legal framework: minimum and maximum penalties.

3 – Analyze the circumstances for and against.

4 – Assign a value measure of time to each circumstance.

5 – Decide on where calculated.

  • Medium Term: Subtract the circumstances for and join the circumstances against.
  • Minimum: the circumstances are added against.
  • Maximum: Subtract the circumstances in favor.

6 – Determine subsequent penalty.