Action, Omission, and Commission by Default in Criminal Law
Item 18 – Action, Omission, and Commission by Default
We first need to distinguish between actionable offenses and crimes of omission.
1. Crimes of Action (in the Strict Sense)
Completion of a bodily movement that launches a causal process. All crimes of action violate a prohibitive rule, a rule that forbids doing something (as opposed to prescriptive standards, which order to do something). We will punish only the conduct of the activity or the production of a result.
A. Crimes of Formal Activity in Itself
For the consummation of this type, we must make a body movement, just that (generally refers to legal rights, not physical, such as privacy, honor, etc.). Results may occur, but are not required to impose punishment, like dwelling; the offense is consummated with entry.
B. Offenses or Material Result
The rate for consumption requires action and result, a change in the world perceptible by the senses outside, falling time and place. We must establish a causal link between action and robbery. Only there should be an attempt; if any result, it punishes the very start of the legal risk.
2. Crimes of Omission
Similar situation to that of mere activity because it will punish any failure to achieve a behavior (the mere activity of simply punishing the conduct of conduct). Failure does not mean, in terms of criminality, but passivity is not completing, stop making an expected behavior. It violates a mandatory standard, a mandate. The subject does not do what the rule states that should be done, without ignoring the mandate to do what the law expects of him.
A. Crimes of Omission Pure or Self
It punishes the mere non-performance of an activity not expected because there is a rule establishing the obligation. Only the type that is consumed (Perfect Crime). For everything, there is a rule that creates the obligation.
B. Crimes Committed by Omission or Improper Omission
In addition to an omission, it is punishable by the result derived from it. Have a structure with common elements of business crimes and crimes of omission because it takes something from each one of them. The elements required for the commission of omission are:
- It requires the non-realization of expected behavior (the existence of omission).
- It requires the non-avoidance of a result (existence of result).
In our Penal Code, the rule is Article 11. The crimes or offenses which consist in the production of a result only read committed by default when no avoiding it, by violating a special legal duty of the author, equivalent, within the meaning of text law, in its causation. To this effect shall be deemed the failure to action: a) Where there is a specific legal or contractual obligation to act. b) When the omitter creates a chance of risk to the legally protected by a previous act or omission.
Derived from this article requires:
- The meaning of the Act allows the equivalence between action and omission. There are items that require active behavior, thereby precluding the commission by omission. Only items that do not require active behavior, but only talk about results, can be given by omission.
- That there is a breach of a special legal duty with respect to the subject’s legally protected. This is the position of guarantor, which is what really allows an individual to punish by omission because it marks the difference between pure crimes of omission regarding the level of demand. In crimes of omission are general precepts pure (for all), but the default commission is no obligation for a particular group of people.
- That there is an interference situation in which it operates and creates a situation hazard is required to prevent the danger the legally injured.
The Causal Relationship
In the field of the theory of causation, we prepare ourselves for offenses. The result (unlike the crimes of mere activity) is necessary to determine the relationship between individual behavior and modification of the outside world that occurred. To solve the problem of causation, different theories have been handled.
1. Theories of Causation
A. Theory of Equivalence of Conditions (or Conditio Sine Qua Non)
Glaser and developed by a German Supreme Court judge Von Buri. She said, based on the scientific logic of cause and effect, for all conditions necessary for producing a result has the value of cause (all conditions are attributed the same value as causal). Translates into a practical formula of constant application and removal is simple mental action disappears so that if the action is the result because of the result. The downside is that you can reach absurd results. Even more absurd is reached if the chain of assumptions is perfectly legal action. Thus, making this theory is not satisfactorily explaining the true cause of the outcome or extending the real area of criminal responsibility because the result extends to infinity.
B. Theory of Adequacy (or Adequate Causation)
It does not solve cases of cumulative causation. The authors of this theory argue that the assertion of causation does not mean that the subject is liable criminally for the death but should analyze the different elements of the crime alleged, after you get to corrective guilt.
C. Theory of Causation Relevant (or Relevant Typical)
It also introduces a legal assessment. Among the possible conditions that produce a result, choose the most relevant. This theory is said to be a prelude to the so-called theory of Causation.
2. Theory of Causation
It introduces an element of assessment because, in it, the second is purely evaluative, and this is close to the theory of adequacy and relevance theory.
2.1. Steps
According to the theory of Causation, it is required to give weight to a causal condition which has produced a result perform:
- First trial on the actual existence of a causal link between action and result. This relationship is established with the theory of equivalence of the conditions which alone allows us to determine whether or not that link causal.
- Partiendo the need to establish the first link and once given it the next step in theory The complaint is to be objectively assessed at the trial, bearing in mind that we established the causality between action and result. We can then speak of the possibility of attributing the result to the action. This second step is carried out based on criteria that has developed the doctrine: The action must create or increase a risk.
2.2. Correction
The theory of Causation as problematic in its application had to be corrected practice. There is a great case that attempts to correct the excesses that the application of the theory of Causation. These corrections are: Refers to the type of riesgo. Por the principle of the lack of increased risk for conduct appropriate hypothetical alternative law would have no objection either objective when the result would have occurred anyway even with the proper conduct standard.