Elements of Offense: Unlawfulness and Justification
Unlawfulness in Criminal Offenses
One element of an offense is unlawfulness, defined as conduct contrary to law. Unlawfulness can be formal or material, where material unlawfulness injures or endangers a legal right. Some argue for criminal unlawfulness outside the legal field, such as cultural norms.
Type of Conduct
Conduct is described in criminal law because the legislature deems it worthy of protection. A person performing the conduct described in criminal law is engaging in a typical action. Typically, a typical action is unlawful, but it may not be if a justification applies (e.g., killing in self-defense).
Structure of Subjects
- Active Subject: The person who performs the action.
- Passive Subject: The victim or the owner of the legally protected property.
Action and Result
The core of the type is the action and result. Generally, the law doesn’t specify the means or instrument for the action. However, exceptions exist (e.g., Article 3.4.6, “wreak havoc”). The location of the action is usually irrelevant, unless specified (e.g., Article 524, “desecration of a religious place”). The time of the action is generally indifferent, but can be relevant (e.g., Article 594, “in time of war”).
Types of Crimes
- Plurisubjective Crimes: Require multiple subjects (e.g., Article 4.7.2, rebellion).
- Common Crimes: The active subject can be anyone.
- Special Crimes: The active subject must have specific characteristics (e.g., Article 4.4.6, a judge rendering an unfair decision).
- Mere Activity vs. Outcome Crimes: Satisfied by behavior (e.g., Article 202, burglary) or by a specific outcome.
- Simple vs. Compound Crimes: Involves a single action (e.g., Article 138, killing) or multiple actions.
- Injury vs. Danger Crimes: Considers the intensity of the attack on legal rights.
- Instant vs. Permanent Crimes: Depends on the duration of the offense.
Justification: Acting in Pursuance of Duty or Right
Article 20.7 addresses acting in pursuance of a duty or in the legitimate exercise of a right. This justifies conduct that might otherwise be unlawful.
Duty
This defense justifies the use of force by authorities in maintaining public order. It requires the official to be authorized to use force, the action to occur during their duties, and the violence to be necessary and proportional.
Exercise of a Right
Conduct is not unlawful if it exercises a legal right, even if it infringes on another’s right (e.g., a creditor seizing assets). However, Article 4.5.5 penalizes “making the right itself arbitrary” by using violence or intimidation outside legal channels.
Exercise of a Post or Office
This includes the right of defense in court, medical practice (with patient consent), and injuries in sports (if unintentional and within the game’s rules). Incomplete defenses may apply under Article 21.