Understanding Recklessness and Negligence in Criminal Law
ITEM 25 – The Blame of Recklessness
They are Synonymous
Negligence can be defined as performing an act without malice, justified typically, but with a predictable or avoidable cause of the breach of duty of care required of the subject personally. It’s not about blaming the typical action, but rather who commits the typical action when they should avoid it.
1. Regulatory Element
This element is the failure of reasonable care to perform dangerous actions for certain legal rights. When there is a violation of these minimum standards when it comes to that activity, it’s an infringement of due diligence. This element should be examined from two points of view:
A. Duty of Care Objective
The objective duty of care sets out how one has to perform an action to avoid injury to a legally protected entity. Depending on these characteristics, the degree of care will also be different.
B. Subjective Duty of Care
This must meet the performance possibilities of the subject depending on their characteristics and establishes the extent to which the subject is personally due observance of duty subjective care.
2. Element Psychological
This acquires a fundamental importance, and disclaims in predictability (intellective element in the fraud) and preventability (intellective element in the fraud), although we can not say that there is an exact parallel. There is a review of the predictability of the subject as the result and their degree of preventability, and depending on how they are going to apply a greater or lesser rebuke.
A. Predictability
The possibility that the subject provides, is represented, anticipating the eventual concurrence of the result. Enough to have been able to foresee (do not need a certain element, but a potential element).
B. Avoided
Since what we reproach the subject is the lack of due diligence to protect the legal rights and interests, we cannot criticize the person who, foreseeing the result, cannot, however, be assessed according to such property. This is not sufficient legal grounds, and the mere possibility of the result is not enough.
Class of Danger
Handled by the two criteria for classifying the doctrine of recklessness. The first accounts for the degree of predictability and the second one in response to gravity. The Spanish Penal Code is serving the second criterion, but from the dogmatic point of view, we used the first time to differentiate between intentional and reckless, and distinguishes between guilt conscious and unconscious guilt.
1. Considering the Degree of Predictability
A. Guilt Conscious (or Fault with the Provision or Representation)
The subject represents the possibility of a harmful element and acts confident that it will occur.
B. Guilt Unconscious
The assumption that there is no representation of the element, even harmful, although the subject is able to predict the outcome.
2. Given the Gravity
A. Negligence
When guilt is more intense for lack of most basic due diligence in the performance of the typical action.
B. Recklessness Slight
The blame would be less intense because of the lack of a reasonably diligent person in the performance of the typical action.
- A breach of duty of care: The higher the breach of duty of care, the more costly the blame.
- The degree of predictability and preventability: The greater the degree of predictability, the higher the level of severity recklessness, as if he could avoid it in any way.
Inability and Neglect
The law makes this distinction: incompetence and negligence. It is a distinction that had been done in the Spanish case law to refer to malpractice.
1. Inexperience
Lack of technical capacity of the subject in the exercise of a profession or art. It requires that the subject has a title that will prove the exercise of that profession (lex artis). In a strict sense, it is the lack of sufficient knowledge, experience, or ability to hold the office.
2. Neglect
We may use the concept of lack of diligence, forgetfulness of art prudential rules imposed on the industry because they bear special enforcement in the performance of specific duties of care.
Regulation in the Criminal Code
The Penal Code maintains a system called numerus clausus (a rated number of crimes are punishable by negligence) and utis singuli (which in these specific cases are punished for negligence of each is assessed a penalty determined in terms of punishment for negligence). The previous system was a general clause, i.e., opposite to the current, which stated that when the Penal Code offenses were committed by negligence, the penalty would be lowered in one or two degrees. Under this system, any offense received a penalty when there was negligence. However, there are some crimes that cannot commit negligence (for example, when there is a subjective element). The current Penal Code, the legislature has made a choice between attending all crimes which are to be punished when committed with negligence.
- When it comes to professional performance of their duties, it must be a byproduct of their office and for this position, only then you may apply the disqualification penalty for the crime after the exercise of office. The case of ineligibility may be more burdensome for the person that basic penalty which would apply to anyone because it is cumulative (builds to imprisonment or whatever). Furthermore, the prohibition can not be suspended or replaced with another. Depending on the importance of legally determining the duration of the prohibition, which can range from the most serious crime (murder) of 3 to 6 years, 1 to 3 years in the case of abortion, from 1 to 4 years in the case of injury, and 6 months to 4 years for injury to the fetus. The maximum established by the Penal Code is 6 years.
- When it comes to committing the crime of a motor vehicle or moped, the penalty is also cumulative and they are deprived of the license. Also here, the current Penal Code provides a penalty and unlike the previous Criminal Code (establishing a maximum period of 6 years while in the previous Criminal Code could reach 8 years).
- The same way when committed by firearms, also will be held the deprivation of the permit, possess and carry and use. Deprivation is the same as that set for the withdrawal of the license.