Lesson 14 - Lecture notes 14 PDF

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Lecture notes unit 14 lesson international law...

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Group M1 Degree in Law LESSON 14. PUNIBILITY 1

CONCEPTUAL DELIMITATIONS

The concept of crime requires the concurrence of the set of constituent elements of the same: action, typicity, unlawfulness, imputability, guilt and punishment. The realization of the typical unjust by a guilty subject, to become criminal, requires punishable, the last essential element of the crime. Punishment is equivalent to susceptibility, necessity and worthiness of the realization of the typical and guilty unjust. Punishment is a characteristic that is predicated of the typical, imputable, and guilty unjust, and is based on the political-criminal demands of utility, convenience and origin of the imposition of a sentence, in order to comply with the normative functions and the prosecution of the Consubstantial purposes of the punitive order.

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PUNIBILITY AS AN ESSENTIAL ELEMENT OF THE STRICT CONCEPT OF CRIME

Punishability and penalty cannot be identified or confused with each other: while punishability constitutes an essential characteristic of the legal concept of crime, the penalty represents a quality referred to the legal consequence of the same, which is the penalty. Punishability is an essential characteristic of the crime, which corresponds to incorporate into the legal concept of crime the political-criminal requirements related to the possibility and convenience of incriminating a conduct as criminal and the adequacy of the criminal sanction of the same. The questioning of punishable as an essential element in the legal concept of crime is based on various arguments, such as: understanding that the problem of punishment belongs to a political-criminal sphere, considering that it is unnecessary to add punishments as an additional note in the concept of crime or consider it as an unavoidable logical requirement as an expressive conceptual note of the legal possibility of punishment but not as an element of the structure of the crime. Faced with the conceptions that interfere, it is considered that punishable constitutes an essential constitutive element of the legal concept of crime, without which the dogmatic category of crime in the proper sense cannot be fully configured, which is complex and multidimensional in its structure but unitary in its essence. Along with the characteristics of action, typicity, unlawfulness and imputability and guilt, the concurrence of the punishment of the typical and guilty unjust carried out by the subject is necessary for the existence of a crime. Without punishment, no crime in the strict sense occurs. The punishable function is specified in a connection link between the founding dogmatic criteria of the criminal sanction and the political-criminal demands of general prevention and of specific prevention to which it must have the same. Punishment assumes the mission of connecting the normative assumptions of the penalty with its own purposes.

Group M1 Degree in Law 3

OFFENSES PERSECTABLE AT THE INSTANCE OF THE PARTY

The crimes that can be prosecuted at the request of a party, also called private crimes, do not have in the current system any more categorical explanation than that of being a consequence of the recognition of the private, individual and available nature of certain legal assets to which priority value has been conferred on the public interest in criminal prosecution. (Semi) private crimes are those whose prosecution is determined at the request of the party, so that the state's punitive claim is conditioned to a procedural obstacle made up of the exercise of the action by the victim or his legal representative, so that if legal action is not exercised, the conduct goes unpunished. Punishment must not be confused with penalty, not even in cases of legal anachronism represented by (semi) private crimes. In all legal types, and also in the field of (semi) private crimes, punishable constitutes an essential element of the crime: all criminal conduct is legally punishable by a penalty.

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ABSENCE OF PUNIBILITY

The legal causes for the absence of punishments presuppose the realization of typical unjust and guilty, with the absence of the last essential element of the crime: the punishability. Such hypotheses make up cases in which, for political-criminal reasons, punishable is lacking; the following assumptions can be differentiated:  Hypothesis of irrelevant impact on the protected legal asset It covers the assumptions of political-criminal valuation in which the need to impose the penalty on the typical unjust carried out by a guilty subject decreases by virtue of the scarce relevance of the incidence on the legal object of protection, to the point that it is estimated to the typical action as a non-creditor of criminal injunction.  Absence of objective conditions of eligibility Rpresent hypotheses in which the criminal norm requires the concurrence of an objective condition in the legal description, so that if such condition does not concur in the typical action, the punishableness of the same declines. Such conditions are called objective because they do not depend on the will. of the author, but of the participation of a third party. It can be understood as such, among others:  Sentence or order of dismissal or file in the crime of accusation or false report.  Condemnatory sentence in the faso testimony against the king in the crime of false testimony.  Lack of justification in the omission of presentation of minor or incapable in the crime of breach of custody duties.  Declaration of bankruptcy, in the crime of insolvency punlibe.  Reciprocal penalty in crimes against the law of nations.  The perpetrator or those responsible for the crime or a declaration of defiance or residence outside of Spain, in the crimes committed, are not known.

Group M1 Degree in Law  Singularities excluding causes of punishment: acquittal excuses They are hypotheses of exclusion of the punishment of the typical unjust subjectively imputed to its author, for political-criminal reasons in the absence of possibility, necessity and merit of the penalty in cases of non-enforceability of other conduct. The following legal hypotheses, among others, can be considered as such:  Concealment between relatives.  Improper withdrawal of rebels or seditious.  Proof of the commission of the crime imputed to the author thereof.  Proof of the truth of the accusations in the crime of insults.  Non-violent property crimes between relatives, regarding the crimes of theft, robbery, extortion, fraud, etc.  Withdrawal in the attempt or impediment of the production of the result.  Withdrawal of the attempt and impediment of the result, in case of co-authorship.

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ABSENCE OF PENALTY

There are other legal grounds that affect the penalty determining its exclusion. The following legal hypotheses include causes excluding the penalty corresponding to criminal conduct, among others:  The inviolabilities also called indemnities are causes of exclusion of the penalty. They integrate assumptions of personal impunity by virtue of the recognition of certain punitive privileges  Criminal exemptions that are cases of personal exclusion from the validity of criminal law with a more limited scope than inviolabilities.  Personal causes of extinction of criminal responsibility, in particular the death of the inmate together with other causes of a non-personal nature.  Objective conditions of procedure or prosecution. They are procedural obstacles that the law establishes for the prosecution of certain crimes, called private crimes.  Jurisdictional license to prosecute crimes against honor in court.

PERSONAL OPINION

Group M1 Degree in Law

As for my personal opinion regarding lesson 14 of Volume II of the subject of Criminal Law, General Part, I am going to start by talking about punishments. Punishment must be one more element for the concept of crime to be given, as well as action, criminality, unlawfulness, imputability and guilt. Punishability constitutes an essential constitutive element of the legal concept of crime, without which the dogmatic category of crime in its proper sense cannot be fully configured, which is complex and multidimensional in its structure but unitary in its essence; It is necessary for the existence of a crime the concurrence of the punishment of the typical and guilty unjust carried out by the subject. Without punishment, no crime in the strict sense occurs. On the other hand, the concept of penalty and punishment should not be confused; While punishable is an essential characteristic of the legal concept of crime, the penalty represents a quality referred to the legal consequence of the same, which is the penalty. However, there are times when they get confused. There are cases in which a crime is appraised but it cannot be constituted as such due to the lack of the essential element of punishability, as occurs in the following cases: convictions in the faso testimony against the king in the crime of false testimony , declaration of insolvency, in the offense of insolvency punishable or not knowing the author or those with priority or declaration of defiance or residence outside of Spain, in the crimes committed. Lastly, there have also been cases in which there is an absence of penalty, different from the concept of punishment, as examples we can cite the following: jurisdictional license to prosecute crimes against honor committed in court or personal causes of extinction of criminal responsibility , in particular the death of the inmate. But as we have already seen, the lack of penalty as well as the lack of punishments do not affect in the same way to give the concept of crime....