300 QUESTIONS AND ANSWERS ON CRIMINAL LAW (GENERAL

PART). THEORY OF CRIME.

QUESTION 1

What is the theory of crime?

The legal theory of crime is that which studies the principles and elements that are common to
all crimes, as well as the characteristics by which crimes are differentiated from each other.

The Theory of Crime, as part of Criminal Science, is responsible for explaining what an illegal act
is for such purposes; That is, it has the mission of pointing out the characteristics or essential
elements of any crime. In this way, it must overcome generic and ambiguous definitions that may be
admissible in certain areas of study or useful for other purposes (for example in the social or
criminological field), but not to specify the specific fact that the repressive legislation punishes. In
summary, as Professor Raúl Zaffaroni points out, the Theory of Crime is a dogmatic
construction that provides us with the logical path to find out if there is a crime in each
specific case, which is why it cannot be limited to defining it as harmful behavior that affects
interests. of third parties, or that violates the rights of his fellow men, or dangerous for social
coexistence, etc., like so many proposals that are usually made to mean a fact contrary to
citizen customs within a community.

QUESTION 2

What are the modern bases of the theory of crime?

The foundations of the modern theory of crime were laid by VON LISZT, who was the first author
to separate the problem of the subjectivist consideration of crime and the objectivist consideration
of it, introducing into Criminal Law the idea of illegality (which had previously been formulated in
the field of Private Law by Ihering) in the second half of the 19th century. He finished off the
analytical theory of crime with a clear formulation of the BELING "typicality" element, which is why
we speak of the LISZT-BELING system to express the modern and analytical theory of crime, and
which, in addition, is the so-called naturalist-causalist system.

QUESTION 3

What is the foundation of the Classical School?

The Classical School of criminal law collected, systematizing it, the best relationship of
Enlightenment of the early 19th century, especially that related to the philosophy of criminal law,
and promoted a vast campaign of reforms in the penal and penitentiary field. Its philosophical
foundation rests on natural law and its practical reason, on the need to destroy the
anachronistic criminal institutions still in force and replace them with more humane and just
ones.
 QUESTION 4

What are the basic principles of the Classical School?

The basic principles of the school regarding crime, responsibility and punishment can be
summarized as follows:

1º.- The crime “ is an infraction of the law of the State; Before a fact or an action, it is a legal
entity because its essence must necessarily consist of the violation of a right. The crime is made up
of two orders of forces; a moral one (conscious will and moral damage) and another physical one
(bodily action and material damage) that together give rise to the criminality of the action.”

2º.- Criminal responsibility for this school is, above all, responsibility based on free
will ; The subject is criminally liable only insofar as, having the possibility of lawful acts, he freely
chose the path of crime. Responsibility presupposes, therefore, prior knowledge of the existence of
a norm that prohibits and sanctions that conduct; prediction of the criminal effects of the legal
violation; freedom to choose among the various possible behaviors that led to the commission of the
crime, and willingness to act against the rule of law.

3º.-From a purely philosophical point of view , the penalty is based on the need for society
to exercise the protection of citizen rights in a coercive manner. Its primary purpose is to
achieve the reestablishment of the legal order disturbed by the disorder of crime. To fully achieve
your goal. The penalty must be afflictive, legal, reparative, divisible and proportionate to the crime.

This school had the merit of having carried out a very complete systematic study of crime as
a legal entity, in addition to having carried out enormous campaigns to humanize the punishment
and to provide protection for the offender with guarantees.

Along with these achievements, deficiencies also stand out, which, by way of criticism,
doctrinaires have agreed to point out in the following points: “a).- It downplayed too much
importance in the study of the criminal; b).- He ignored preventive and security measures because
he considered that they were not part of criminal law; c).- Made the infringement a true legal
transaction; and d).- The penalty preserved its retributive character intact.”

QUESTION 5

What does the Positive School consist of?

This orientation was called positivist because of the philosophical current that inspired it.
Hence the name of positive school of criminal law given to the new current of studies, which
immediately took a position against the classical school, opposing in this sense to its abstract
individualism the need to more effectively defend the social body against the action of the crime, he
energetically put social interests before those of the individual.

The main founders of this school is Cesare Lombroso , who with his research on the prison
population of northern Italy led him to the conclusion that the criminal is an abnormal person, with
certain psychosomatic characteristics that allow him to be differentiated from other people: it was
stated like this a theory about the “born criminal.” Lombroso 's specific contribution to criminal
sciences was, therefore, the direct and systematic observation of the delinquent man.

QUESTION 6

What are the basic principles of the Positive School?

We can summarize the basic principles of the positive school as follows:

1º.-The criminal is the protagonist of criminal justice; He is not a normal man, but a subject
who, at least at the time of perpetrating the crime, presents more or less serious biopsychic
anomalies, congenital or acquired, permanent or temporary.

2º.-Crime “is, above all, a natural, human phenomenon, caused by a triple order of factors:
individual (organic and psychic), physical (telluric environment) and social (social, economic and
political environment).”

3º.-Responsibility is based on the psychophysical activity of the offender; It is a legal or social

responsibility, substituting the morality that the representatives of the classical school speak of.

4º.-The penalty is a measure of social defense of a preventive nature; It should not be

imposed for a fixed term because, since its purpose is the rehabilitation of the offender, it is
impossible to determine in the future the duration of this rehabilitation process. Furthermore, the
penalty must be adapted to the personality of the offender due to the crime committed.

In general terms, the positive school represented a great advance in criminological studies, firstly
because it attacked the excessive formalism of legal norms and sought to adapt them to reality; in
the background, because he was concerned with the study of the criminal man, with which criminal
law acquired a more human content; third, because he called for the establishment of special
establishments (agricultural colonies and criminal asylums) for the confinement of mentally ill
inmates; and finally, because it supported the need to repair the damage caused by the crime.

And as happened with the classical school: despite having contributed great achievements, the
positive school is also the object of several criticisms such as these: “a).- They postulate
determinism, which is an extreme doctrine, as unproven as free will. ; b) Social defense has a basis
with a classist tendency, and is not the only purpose of punishment; c).- His classification of
criminals, like any other attempt to schematize the human person, is still artificial.”

QUESTION 7

Who are the representatives of the Terza Scuola School?

This school, which can well be considered a variety of critical positivism, was born in Italy by
Emanuele Carnevalle , professor at the University of Palermo and author of an important work
called “Una terza scuola di diritto penale in Italia”, published in the year of 1891; Bernardino
Alimena and Gian Battista Impallomeni , professors at the University of Rome and predecessors
of Enrico Ferri in the chair of criminal law at that same university, can also be considered members
of this school.
 QUESTION 8

What are your penal principles?

Its fundamental principles, in the opinion of the Spanish criminal lawyer Eugenio Cuello Calón ,
are the following: “a).- Imputability based on the directivity of man's acts; b).- The nature of the
penalty lies in psychological coercion; and c).- The purpose of punishment is also social defense.”
Although somewhat incomplete in its assessments, other prominent authors mention that this
school within its principles stipulated that criminal law is an autonomous science; Along with the
crime in its legal aspect, the illicit must be studied from the anthropological and sociological point of
view.

QUESTION 9

What is the School of Criminal Policy?

The School of Criminal Policy. This current was born in Germany with the name of the
Sociological School; Its basic ideas were initially presented by Franz Von Liszt in his university
professorship in Marburg in 1881 and developed in subsequent publications.

QUESTION 10

What are its basic principles?

Among the basic principles that distinguished this school, we can point out the following: 1.-
They postulated that the legal method should be used to investigate the content of positive criminal
law and the experimental method for criminological work; 2º.-Normal criminals are imputable; For
abnormal ones, given their danger, safety measures must be applied; 3º.-Crime “is not only an
abstract entity, but a phenomenon caused by endogenous and exogenous factors by its own
nature”; 4º.-The penalty must not be retributive but preventive; Its purpose is the protection of
common interests.

QUESTION 11

What is the Neoclassical School?

The Neoclassical School. The neoclassical trend, known as the technical-legal direction, is of
Italian origin and counts among its members Arturo Rocco, co-author of the Penal Code project in
force in Italy, jointly Vicenzo Manzini and Franceso Carnelutti.

In summary we can mention the following as fundamental principles of this school: a).- The object of
criminal science is the current positive criminal law; b).- In the study of crime, its human and
sociological aspect must be ignored, to focus only on its legal nature; c).- For the purposes of
criminal responsibility, free will must be dispensed with, but preserving the differences between
imputable and non-imputable; d).- The penalty, as a legal reaction against crime, should only be
applied to normal people; abnormal ones are subject to insurance measures of purely administrative
content.
 QUESTION 12

What is the Finalist School?

The Finalist School. Also known as “Finalist Theory of Action”, this doctrinal current was born in
Germany through the work of Hans Welzel, who systematized following the philosophical theories of
Honogswald and Hartmann, as these authors maintain that all human action implies a final direction
of the event. casual, from which they deduce that action is a final human activity.

For this school, in summary, “action is a basic element of the type and within it exists the
location of fraud, understood as the will to act that manifests itself in a result, thereby moving this
figure from the scope of guilt. that of typicality.

Therefore, culpable crime is a negligence determined by the use of wrong means; In it, the
agent wants, as in the intentional crime, a certain result and uses the means that will serve to
produce it, but due to his insufficient knowledge of the causal laws, he achieves, without will, a
typical illegal result. With the above, the concepts of purpose and causality are thus confronted; this
as a result of a methodical causal series, whose relationships require a subsequent objective
clarification; that, on the basis of knowledge of causal laws, as a calculated evaluation of that
knowledge whose application will allow obtaining the causal event.

QUESTION 13

Where does the word crime come from?

The word crime “derives from the Latin verb delinquere, which means to abandon, to deviate
from the good path, to move away from the path indicated by the law.” For this reason, the highest
representative of the Classical School, Francesco Carrara wrote that the crime is the abandonment
of the Law.

QUESTION 14

How did the Penal Code of 1871 define crime?

Thus, the Penal Code of 1871, in its article 1, provided the concept of crime in the following
terms: “Crime is the voluntary violation of a criminal law, doing what it prohibits or failing to do what
it orders.” This concept contains indicative and dogmatic data of great value, since the crime is not
an action, but an infraction because it is an illegal data that distinguishes it from other behaviors;
Furthermore, it did not refer to a sanction, but to the prohibition of doing or not doing what the
criminal law stipulates. Finally, it has three characteristics that distinguish it: first, that it is an act;
second, that it is an opposition to the criminal law; and third, which involves a psychological
element: voluntariness.

QUESTION 15

How did the 1929 Penal Code define crime?

 Then, the Penal Code of 1929, which as we know, came to repeal the previous one,
established in its First Book, First Title, in its first paragraph of article 11, that: “Crime is: the injury of
a right legally protected by a legal sanction.” At first glance it seems that this concept is only taking
into account the result, that is, the injury to a right, which could be produced by any cause: but in the
second paragraph of the same section this situation is clarified by perceiving that "the acts and the
omissions imposed with a sanction in the Third Book of this Code, are the legal types of crimes.”
Hence, only actions and omissions can be crimes.

However, regarding this concept, we still have some considerations to note, because it
shows a notable legal and legislative technical lack, since it is not clear enough, in the sense that it
only mentions its effects as if its effects did not exist. causes, furthermore, “it does not understand
dangerous crimes and forgets that there are crimes that do not harm rights, but rather the property
they protect.”

Due to the deficient legal structure of this Penal Code of 1929, characterized by constant
referrals, duplicity of concepts and notorious contradictions, which made its practical application
difficult, it was repealed in less than two years by the current Penal Code of 1931.

QUESTION 16

How did the Penal Code of 1931 define crime?

This last criminal-legal instrument, since it emerged, conceptualized the crime in the first
paragraph of its article 7, which literally orders that: “Crime is the act or omission that penal laws
sanction.” This concept has deserved severe criticism from Mexican legal doctrine, because it is
criticized as formalist and tautological, but it constitutes a logical concept, an a posteriori judgment,
which associates the crime as a cause with the penalty as an effect. On the other hand, a simple
reading of any of the singular criminal norms included in the Special Part of the penal codes allows
us to observe that it is made up of two parts: the precept and the sanction. The precept is nothing
more than the description of a mode of conduct prohibited in the norm, the sanction, the deprivation
of a legal right, with which the execution of that conduct is ordered.

QUESTION 17

What practical benefits does that definition have?

Regardless of these criticisms, whether they are technical or not, they obey more than
anything to the demands of the principle of legality enshrined in article 14 of the Constitution, in the
sense that there is no crime or punishment without law. Consequently, there is no doubt that it is
specifying that the object of criminal regulations can only be actions and omissions; Criminal
conduct, therefore, must first of all be an action or an omission. On the other hand, it implies the
obligation of prior establishment of the legal types by punitive regulations, making these only
punishable actions, and this is a reference when the concept stipulates “that sanction criminal laws.

QUESTION 18
 What is the sociological notion of crime?

Once positivism was fully developed, it sought to demonstrate that crime is a natural
phenomenon or fact, a necessary result of hereditary factors, physical causes and sociological
phenomena. Rafael Garófalo, the wise exponent of positivism, defines natural crime as "the
violation of the altruistic feelings of probity and piety, to the average extent indispensable for the
adaptation of the individual to the community." This jurist felt the need to observe something and
derive a definition from it; and not being able to act on the crimes themselves despite that being the
subject of his study and definition, he said he had observed the feelings; although it is clear that if it
is to be understood that it refers to the feelings affected by crimes, this current sought to
demonstrate that crime is a natural phenomenon or fact, a notion far from being correct since each
particular crime is necessarily carried out in the nature or on the stage of the world, but it is not
nature, one cannot search or investigate what crime is in nature, because in it and through it alone it
does not exist, it is like trying to say that crime exists without the need for man, or also to say that
the crime existed first that the human being, by itself cannot exist, there has to be a behavior that is
what will generate an act, an action, a will that only exists in the nature of man . Sociologists define
action as socially relevant human behavior. A behavior will be socially relevant when it affects the
individual's fulfillment with his or her surrounding world, that is, when its consequences affect
society.

QUESTION 19

What is the substantial legal notion of crime?

Here we will see different notions of crime, we will mention concepts from writers who some
were not legal scholars, but contributed great knowledge to legal science.

Manuel Kant: Punishment is a categorical imperative, a requirement of reason and justice and a
legal consequence of the crime committed; Its imposition does not aspire to obtain ends of utility,
but purely of justice; Its foundation is found in the absolute principle of legal retribution, Kant goes
so far as to affirm that the evil of the punishment must be equal to the evil of the crime, thus
approaching the principle of retaliation.

Federico Hegel: This author tells us that "he understands that the irrational will, of which the
crime is an expression, must be opposed by the penalty representative of the rational will, which the
law translates, the crime is the denial of the right and the penalty is the denial of the crime.

Pablo Juan Anselmo Von Feuerbach: He says that the imposition of the penalty requires a
previous law (nulla poena sine lege). The application of a penalty presupposes the existence of the
action provided for by the legal threat (nulla poena sine crimine). It is the law that creates the link
between the injury of the right and the evil of the penalty (nullum crimen sine poena legalis). Crime
is an action contrary to the rights of others repressed by a penalty. We find in this author one of the
principles that have given us great contribution to our law, (there is no crime without punishment,
and there is no punishment without law).

Giovani Carmignani: This author opposes the doctrine of moral justice and the retributive
meaning of punishment, stating that the right to punish is based on political necessity. Considers it
necessary that the repression of crime should be preceded by its prevention.
 Carlos David Augusto Roeder: For this author, he considers that punishment is the rational and
necessary means to reform the unjust will of the criminal; But such reform should not be limited to
the external legality of human actions, but to the intimate and complete justice of his will. It states
that the penalty must have the character of correctional or protective treatment and its duration will
depend on the time necessary to reform the ill will that is sought to be corrected. As we can see,
this contribution from this author takes us to our legislation where one of the main functions of our
law is the readaptation of the individual to society.

Franz Von Liszt: This German criminalist maintained that crime is not the result of human
freedom, but of individual, physical and social factors, as well as economic causes. From all these
notions, we have seen that we start from internal factors that the authors give us, from internal
feelings to external factors, the environment in which the individual develops, their socio-economic
situation, a factor that gives us the guideline to determine one of the reasons why the active subject
of the crime acts.

QUESTION 20

What does Psychological Theory say about crime?

This theory studies the guilt element of the crime, which consists of the causal link that unites the
subject with his act. He directs his attention to guilt to give us his conception of the crime. Guilt on a
Psychological basis consists of a Psychological link between the subject and his conduct or the
material result, depending on whether it is a crime of mere conduct or a material result. In the crime
of solely conduct there is a single Psychological link, in the crime of material result this theory tells
us that in addition to the existence of the psychological link between the subject and the behavior
there must be a link between the subject and the result, that is, there are two links. Therefore, for
Psychological theory, guilt originates as soon as the Psychological link exists. This theory is
criticized and I agree regarding guilt since it is not possible to categorically affirm that guilt is the
Psychological connection in the author's will and the result of his action, in a certain situation it does
have truth, regarding a crime committed intentionally, the subject plans, thinks about the act that he
is going to perform and is aware of the result, he desires that harmful result, but when a subject due
to carelessness, negligence or ignorance of the cause carries out an act and as a result commits a
crime, In the actions of this subject, his behavior was not aimed at committing a crime, he does not
think about the possibility of the result, his thinking is not directed at committing a crime, it is outside
of him, which is why this Theory has been criticized, in the which we agree with such criticism, as
we know in our law we find intentional, culpable crimes.

QUESTION 21

What does the Causal Theory say about crime?

The action is an aspect of crime and for the Causal theory, it is a human behavior dependent on
the will (voluntary), which produces a certain consequence in the outside world. This consequence
can consist of both pure bodily movement (crimes of mere activity), and this bodily movement
followed by the result caused by it in the outside world (crimes of result). This theory treats the
action as a causal factor of the result, without taking into account the intention that led the subject to
commit it. Of the action, it only matters if the behavior moved by the will caused the result and not if
the will was directed to it. Causalists explain the existence of the criminal action, when a subject has
the will to carry it out, without necessarily taking into account the purpose that was proposed when
doing so, because this does not belong to the conduct or fact. For the causal theory, the action "is a
muscular innervation", that is, a voluntary movement that caused a result. Action is conceived as a
natural and extra-legal causal process, free of value, as simple causation, without taking into
account the governing will, it contemplates the sole production of the act in the external world and
not acting full of meaning, they separate the content of the will, that is, the purpose, the purpose
with which or why something is done, limiting the action to appear only as a causal function. Action
is considered as a procedure with dependence on existence, as an instinctive reflection, in which
the action is not considered with the purpose of movement, but simply as the will to make the
movement. This theory is also criticized, since the action is what counts as well as its result,
knowing the end, knowing the feeling, the will, the reason why it leads to carrying out said act, has a
purpose. In the criminal code for the Federal District in matters of common jurisdiction and for the
entire Mexican Republic in matters of Federal jurisdiction in article 15, referring to the causes of
exclusion of the crime. It says: "I.- The act is carried out without intervention of the agent's will." It is
clear and we refute this theory as long as the will is the only presupposition for the commission of
the crime, it is not the will or the action that are the only presuppositions of the crime, they are these
and others, which we will see later. Now we will see the theory that opposed this.

QUESTION 22

What does the Finalist Theory say about crime?

This theory tells us that action is not only a process causally dependent on will, but by its very
essence, the exercise of final activity. The purpose obeys the capacity of man to foresee, within
certain limits, the consequences of his causal behavior and to conduct the process according to a
plan to the desired goal. The finalists consider the will as a driving factor that superdetermines the
external causal act, that is, the agent to commit the criminal act thinks about the illegal act and
carries out the criminal behavior, because his will has an end and this is the last act that causes the
crime. appearance of the crime. The will carries a content, the intention to commit the illegal act, the
purpose of achieving something, we find here in this theory the opposite part of the causalist theory,
here the purpose of the committed act is considered, the will to want to carry out its mission. . For
the finalists, the action is driven, since the subject first thinks about his objective, choosing the
means to achieve it, and finally concludes his objective with the realization of the action manifested
to the external world. The finalists say that the action is a mentally anticipated behavior, of a
conscious nature, we can say that the agent to commit the criminal act thinks about the illegal act
and carries out the behavior, because his will has an end and this is the last act that causes such
conduct, where the crime appears, the will carries a content, the intention to commit the crime, the
purpose of achieving something. Although this theory, its study and reasoning, is the end, the
ultimate consequence of the will, it is also not completely accepted, because although it is true that
the subject thinks, meditates and carries out the criminal act, which counts for the finalists is the
result of that act, just like the causalist theory, it is criticized with respect to reckless crimes, since
non-intentional final acts can occur, without the will of the subject. To cite an example: an action of
death is committed by both the one who shoots aiming with the intention to kill, and the one who
accidentally discharges it on another when cleaning his gun, forgetting the reference of acting with
the result. In the first case, the subject finally acts in relation to homicide, he commits an action of
death, that is his purpose, we agree with the finalists, but in the second case, the purpose is limited
to the behavior of cleaning his weapon, his will is about cleaning the weapon, which carries out an
irrelevant end for the type, which due to carelessness, causes the typical result, this is where the
finalist theory is criticized because it is not possible to impute malicious conduct to an act reckless, it
was not its purpose, it was not its mission. Between the two previous theories mentioned, his
contribution to Criminal Law was of great importance. We can distinguish the causalist and finalist
theories of action, in the first one considers the action as mechanical a causal product, while the
second determines direction or purpose to that causal product, that is, there is a will oriented in a
certain direction.

QUESTION 23

What does the Logical Model Theory say?

The Logical Model: Within contemporary criminal law, a way to know and delve into criminal
legal science has been exposed, called "mathematical logical model of criminal law", in our country,
its best exponents have been doctors Olga Islas de González Mariscal and Elpidio Ramírez
Hernández, counting on the studies of the mathematical logical models of Lian Karp S. And
Eduardo G. Teran.

To explain their theory, Dr. Islas and Ramírez use two latices which can be defined as the
ordered graphic representations of a set of logical propositions. The first is projected onto the
second, the latter having the function of the interpretative latiz. To try to explain their theory, in
addition to the latices, they refer to the contributions to the theory of type obtained from the
mathematical logical model of criminal law, which they summarize in eight, being the following:

1. - The location of the type compared to the theory of the crime. At this point, the type occupies a
preferential and fundamental place.
2.- The second contribution refers to the grouping of the elements into two subsets; In the first, there
are the assumptions of the crime and in the second, the typical constituent elements of the crime.
3.- In a third contribution, the type is incorporated as one of the elements, the cultural norm
recognized by the legislator; This criterion has its antecedents in the thought of Carlos Binding and
Max Enerst Mayer.
4.- As a fourth contribution is the location of imputability in the line or scope of the active subject, at
this point it is considered that the subject has a generic capacity for the crime, which becomes
relevant as it is related to the crime. specific case submitted to criminal legal consideration.
5.- In this contribution, the injury or endangerment of legal property is considered a typical element;
such elements are for the mathematical element, a fundamental notion.
6.- In the sixth contribution, Illegality is included in the type, as one of its elements, which is
conceived within an evaluative judgment, where the violation of the cultural norm recognized by the
legislator occurs.
7.- The word "kernel" is included as a contribution, which means "nucleus": the word "kernel" is
used, in the opinion of the speakers Islas and Ramírez, because it is more fortunate than the name
"nucleus", but it is The latter, for some writers, is the pure verb, for others something else besides
the verb, thus the word "kernel" is used in a sense of typical behavior, understood as described by
the type, that is, the behavior alone.
8.- In the eighth contribution, the so-called normative and subjective elements are presented, whose
historical concepts do not satisfy the logical mathematical model. This criterion is supported, in
relation to the normative elements, it is not only a legal or cultural assessment, or, Illegality included
in the type, and therefore, the expression "objective elements of the crime" is eliminated; a similar
aspect occurs with the so-called subjective elements, this is due to the criterion that the illicit only
has fraud and not such elements.

To conclude with their defenses of their contributions and in particular of the advantages of the
logical mathematical model of criminal law, doctors Olga Islas and Elpidio Ramírez tell us that the
contributions presented by them are of such significance that they constitute new and authentic
guidelines, towards all the lines of criminal law.

The location of the guy in front was enough, giving full validity to the "nullum crime sine lege", to
declare the goodness of the method. But the second contribution consists of the division of the
typical elements into two subsets: budgets and elements of the crime, it is something already
definitive. The injury, or endangerment, of the legal good, fully identified and with the rank of
autonomous element of the crime, not only fills the void that existed in the theory of the crime, but
also gives it the explanation and meaning that it lacked. justifying, ultimately, the criminal law itself.
This new element can serve, in addition to a criterion, and the best one, to distinguish between a
completed crime and an attempted crime. For the validity of the criterion, it is required that
consummation necessarily implies an injury and the attempt entails endangerment; That is, we will
be faced with a completed crime when, and only when, the legal asset is injured, and we will be
faced with an attempted crime when, and only when, the legal asset is endangered.

QUESTION 24

What is the definition of the writer Edmundo Mezger regarding crime?

For the German writer Edmundo Mezger, “it is a typically illegal and culpable action.”

QUESTION 25

What is the contribution of the aforementioned author regarding the crime?

Regarding the concept provided by teacher Edmundo Mezger, we find the following elements
and the very essence of the crime. This is: 1.-It is a human behavior understood as human action in
its double profile: an action or omission; 2º.-It is typical, that is, provided for and described in the
criminal law; 3º.-Antilegal, that is, contrary to the objective law because it is contrary to a mandate
or a prohibition contained in the legal-criminal norm; and, 4º.-Guilty in any of the ways recognized
by criminal law (intentional or culpable).
QUESTION 26

What is the definition of the writer Max Ernesto Mayer regarding crime?

For Max Ernesto Mayer, crime is a typical, illegal and imputable event.”

QUESTION 27

What is the contribution of the aforementioned author regarding the crime?

 The concept of the teacher Max Ernesto Mayer, although similar to the previous one,
replaces the element of the guilty with imputable, understanding this notion as the ability of the
active subject to understand and want to direct his actions within the legal-criminal norm.

QUESTION 28

Have these concepts influenced Mexican criminal legislation?

These concepts have influenced some Penal Codes of the Mexican Republic, thus, we have
that, the first of them can be found verbatim in article 9 of the Penal Code for the State of
Querétaro; while the second, in article 11. From the Penal Code for the State of Guerrero.

QUESTION 29

What are the positive and negative aspects of crime?

Despite the various efforts made by specialists in the field to unify criteria regarding the positive
and negative aspects of crime that necessarily derive from it due to the elements that comprise it, it
has been an intellectual task today that is somewhat difficult to achieve. resolve, due to the different
criteria or positions of the same writers, that when developing their own definition of crime they
detach the elements from it, therefore, we will see below this differentiation in criminal doctrine to
have a vision on this problem.

For teacher Luis Jiménez de Asúa, the positive and negative aspects of the crime are the
following:

“Positive Aspects Negative Aspects

a).- Activity a).- Lack of action
b).- Typicality b).- Absence of type
c).- Illegality c).- Causes of justification
d).- Imputability d).- Causes of non-imputability
e).- Guilt e).- Causes of guilt
f).- Objective conditions f).- Lack of conditions
objective.
g).- Punishment g).- Excuses for acquittal.”

QUESTION 30

What criteria does the Federal Penal Code follow?

Regarding the positive and negative aspects of the legislative concept of the crime
contained in article 7. of the current Federal Code, are the following:

Positive Aspects Negative Aspects

a).- Conduct a).- Absence of conduct
b).- Typicality b).- Absence of type
c).- Illegality c).- Causes of justification
 d).- Guilt d).- Causes of guilt
e).- Punishment e).- Excuses for acquittal.

QUESTION 31

What are the elements of the crime?

The characteristic notes of the crime have been called “elements”. In general terms, elements are
an essential component that enters the structure of an object and is obtained from its
decomposition.

From the legal point of view, the elements of the crime are any sine qua non components,
indispensable for the existence of the crime in general or special.

QUESTION 32

What is the first element of the crime and how is it characterized?

Conduct is the first of the elements that a crime requires to exist, and this is characterized by being
a voluntary, active human behavior (a positive act); or, negative (inactivity or failure to do) that
produces a relevant result in the criminal-legal field.

QUESTION 33

What are the elements of behavior?

The conduct (called an action, act or fact, by others, who only contemplate a particular form
of it) constitutes an element of the crime.

Generally, elements of behavior are identified as: a manifestation of will, a result and a causal
relationship.

The authors refer to the manifestation of will to the behavior and not to the result. For example,
Soler states that the study of this relationship is not part of the theory of action, but of guilt.

Welzel emphasizes that human action is the exercise of finalist activity; that the action is,
therefore, a “finalist” event; and not just “causal”; that the purpose is “seer”; causality is “blind.”

In fact, conduct, in Criminal Law, cannot be understood other than as culpable conduct.
Therefore it includes: wanting the behavior and the result; Otherwise, we would be accepting a
concept of behavior, limited to wanting only bodily behavior. For all this, we reach the conclusion
that the behavior is chromatic, contrary to what was established by Beling, that the content of the
action is colorless.

Now, if the behavior must be understood as guilty behavior, the negative aspect of it could be
argued that it is a cause of guilt, as Constancio Bernardo de Quirós and José Rafael Mendoza
think, encompassing, as is natural, the absence of movement. voluntary corporal behavior, since
otherwise it would be to accept that the negative aspect of the conduct would be constituted by the
absence of pure bodily behavior, which is not enough for the existence of an action understood as
criminal law: as a guilty action, that is, the conduct is a “valued” and not “natural” concept.

QUESTION 34

What do the psychic and material elements consist of in the configuration of behavior?

Therefore, active human behavior consists of voluntary bodily behavior aimed at achieving a
specific goal. And it is made up of two fundamental elements: a).- the psychic or internal element;
and, b).- the material or external element. The first is a human attitude, which consists of the
direction that the active subject gives to the punishable act at his will to achieve an illicit end, it is
therefore a psychic energy that is projected against an object or a person, and therefore Therefore,
there is awareness and knowledge when a positive behavior or action is executed. And only human
conduct that has the characteristics that the criminal law establishes can be a crime; Therefore, this
will determine which acts of man have the category or rank of crime, considering them as an action
or an omission. The second, for it to be configured, must be projected into doing or not doing in an
externalized way, that is, it is translated into physical or muscular movements to consummate the
illicit conduct of the active subject of the crime, therefore, it has to do "something", in such a way
that it changes the external world with its behavior.

QUESTION 35

How important are the elements of behavior dogmatically?

The analysis of the elements of behavior that are indicated offers an undoubted practical
significance for the dogmatist, especially with the problems they raise in relation to:

The classification of instant, continuous and permanent or continuous crimes, which in turn lead to
solutions that affect competition, participation and prescription.
The division into crimes of action, omission, commission by omission and those called by Grispigni
of omission of event.
Crimes of simple activity or formal and material crimes, the nature of which offers undoubted
relevance with respect to those of “iter-criminis”
causality, which allows establishing the due adequacy of the behavior to the type, and
The place and time of the action, which the theories called:
a') Of activity or as Mezger says, of resistance.
b') of the result or event.
c') Combined or unitary or mixed or that of ensemble or ubiquity, as Cuello Calón calls it.
d') Of the intermediate event
e') Of the total path of the event.
f') Of the legal assessment, and
g') Of the expanded activity.

QUESTION 36

What is action in the broad sense?

 Action in the broad sense encompassed both action in the narrow sense and omission, this was
conceived as an "external-natural process, such as: voluntary causation or voluntary omission to
prevent a modification in the external world. As action and omission they are contrasted like an A
and not A, since in the omission there is precisely a lack of bodily movement and with respect to the
culpable omission, in addition to that movement, the will for non-movement, and physically a non-
event.

QUESTION 37

What is lato sensu action?

Action (lato sensu) was conceived as human behavior, or as the realization of the will of a
human being. Concept of action that sought to encompass both positive acts (action in the strict
sense) and negative acts (omission); In turn, it was intended to be a unitary concept of action, but it
remained causal since it respected the separation, will (for bodily movement) from its content
(fraud).

QUESTION 38

What is the result?

The result of the action must be sanctioned by criminal law, it must constitute a crime described
and punished by law, whether it harms legal interests protected by law or only endangers them as
required by legal precept. The result of the action will be the consequence of the action, which the
law considers decisive for the commission of the crime, it is the result that will be provided for in the
Penal Code, it is the modification that this behavior is carried out in the outside world, and that each
resulting in a penalty provided by law. The result is not only damage committed by the crime, it does
not consist only of the material change in the outside world, but also in mutations of a moral order,
citing an example, threats are damages that occur, not of a material nature, but if in a psychic way,
of danger, that in some way alter the social order, an imbalance is caused in the common life of a
certain group of people, the mere fact of remaining as an attempt produces a disorder, there is an
alteration in the life of the person in danger, their safety, tranquility and above all the collective
order, regarding the result of the crimes they can be formal or material regardless of the purpose,
the formal ones are the crimes of activity and the material ones are those of external result, that
attack legal interests. In formal or simple activity crimes, it is not possible to distinguish a result
other than physical conduct, again taking the crime of threats as an example; Crimes with a material
result are those in which an external result is materially produced, the crime of theft, for example.

QUESTION 39

What is the causal relationship?

In behavior, the causal relationship must be established between the physical action and the
external result so that it is attributable to the subject, that is, the causal relationship must exist in the
nexus between human behavior, its consequence and the material result, said Causal link is an
element of the conduct, not of the crime as they have wanted to attribute it to, there are various
doctrines regarding the causality of the conduct and the result; One is the generalizing current,
which takes into account all the conditions as the cause of the result, and the individualizing current,
which considers only one of the conditions as producing the result in relation to a temporal,
quantitative or qualitative characteristic. In the generalizing theory, also called the theory of the
equivalence of conditions, the authors explain that if one of the conditions were suppressed, the
result would not occur, that is, the result is not conceived without the participation of all the
conditions, it is said that all The conditions have the same value.

QUESTION 40

What are crimes of omission?

For the crime of omission to be established, it is necessary that the non-performance of the conduct
must be voluntary, not coerced and the subject produces the result with his inactivity, having the
legal duty to act. Crimes of omission, like crimes of action, can harm legal assets protected by law,
or only endanger them.

QUESTION 41

How are crimes of omission classified?

Crimes of omission are classified into: crimes of simple or proper omission, and crimes of
commission by omission or improper, this responding to the nature of the norm; crimes of simple
omission or their own, consist of omitting the law, violate a mandatory law, do not produce a
material result; while the crimes of commission by omission consist of making the omission with a
result prohibited by law, there is a material result. In crimes of simple omission, only the omission is
punished, there is no material result, while in crimes of commission by omission, the result
produced is punished, there is a causal relationship, because there is a cause-to-effect link, they
produce a change in the outside world, a material change in addition to the legal result. In these
crimes of omission (simple omission and commission by omission), as in crimes of action, there are
theories that refer to the causality of these crimes and are controversial.

QUESTION 42

What does the theory of aliud actum agere or facere indicate?

Contemporary or diverse: it says that causality is found in the positive act carried out by the
subject when abstaining from a behavior expected and required by law, and the result produced by
the action is allied to the omission, this theory has its objection which tells us that it cannot be
accepted since it cannot be the cause of an action other than the omission, the causal link of the
omission with the result would be broken, as had already been commented, the cause is found in
the omission itself and at Failure to perform the required and expected behavior produces the result.

QUESTION 43

What does the Theory of Preceding Action say?

This theory maintains that causality is between the act preceding the omission and the result.
This theory cannot be accepted because there can be no causal link between it, which is not always
present, and the result, since the cause would have no value, since it is not enough to produce the
result.

QUESTION 44

What does the interference theory say?

Here the subject dominates the impulse that pushes him to act and the causal link is between
the energy produced to dominate the subject's impulse and the result; it is about finding a physical
cause of the result. His objection is based on the fact that the omission will not always arise from a
stimulus that drives the subject to act; in culpable crimes this stimulus is not present.

QUESTION 45

What does the theory of omission itself say?

It is based on the normative conception, and maintains that the causal relationship is found in it
and the result produced. This theory is the one that approaches the essence of these crimes, since
the true cause is found in the omission itself, because if the required and expected action were
carried out, the result would not occur.

QUESTION 46

In short, what can be said about crimes of omission?

In crimes of omission, we see that the subject carries out voluntary inactivity, having the legal duty
to do so, we can find in these crimes that their verification will sometimes be difficult since the active
subject of the crime of omission, invokes for his defense that he was unaware of. that the act carried
out (omission) would result in a criminal act, in the event that such justification is given by the law, in
the section corresponding to the exclusions of liability, any action or omission that leads to the
performance of A crime will be punished by law and for its punishment the judge will take into
account the circumstances of the facts, how said criminal act was carried out, if the conduct was
aimed at carrying out an action or an omission, we have as the first element the conduct.

QUESTION 47

What is the negative aspect of the behavior?

It is the absence of behavior. It is the negative element of the conduct, it covers the absence of
action or omission thereof, in the commission of an illegal act, we can affirm that if one of the
essential elements of the crime is missing, it is not integrated.

QUESTION 48

What are those causes?

The absence of conduct is presented by:

1.- Vis absolute or irresistible exterior superior physical force: This irresistible physical force is a
negative aspect of behavior; The subject, through this, will carry out an action or omission that he
did not want to execute, therefore this situation cannot constitute a conduct, due to the lack of the
subject's will, an essential element of the conduct. When a subject commits a crime due to physical
and irresistible force coming from another subject, there is no will in the performance and the
element of conduct cannot be presented by virtue of not being a voluntary act, it is necessary that
the force must be physical, that is, material, because it is the only one that can force the subject to
act against his will, that is why it is said to be external and irresistible because the subject that
receives physical force cannot dominate or resist it and is defeated by it. . Our Mexican Positive
Law, in article 15 of the Penal Code in its first section determines as a cause for exclusion of the
crime: "the act is carried out without intervention of the will of the agent", this is the affirmation that it
cannot constitute criminal conduct. when the agent's will is not present. The Supreme Court of
Justice of the Nation in this regard says "By irresistible external physical force, we must understand
certain violence done to the body of the agent, which results in him executing, irremediably, what he
did not want to execute." (Judicial Weekly of the Federation, 84, p. 175.).

QUESTION 49

What is force majeure?

Force majeure is when criminal behavior occurs due to force majeure, that is, when the subject
performs an action in the broad sense (action or omission) coerced by an irresistible physical force
coming from nature. In force majeure as in external physical force, there is no will in the subject, the
difference between one and the other is that in the absolute vis, it is an irresistible force coming
from man, while in the vis major it is a physical force and irresistible coming from nature.

QUESTION 50

What are reflex movements?

They are a cause of absence of conduct, because, as in the previous ones, the will of the subject
does not participate either. However, the possibility of guilt of the subject has been considered,
when he has foreseen the result or when he has not foreseen it, having to do so, where both guilt
with representation and without representation will occur, reflex movements are involuntary bodily
acts, They will not function as negative factors of behavior if they can be controlled or delayed.

QUESTION 51

What is sleep as a cause of non-conduct in criminal law?

The dream: in relation to the dream, according to research and the opinion of authors, they have
been inclined to classify it as a negative aspect of imputability, but we consider it more accurate to
classify it as the absence of conduct, it is said that in this state the will of the Due to being asleep,
the subject does not have control over himself. In this sense, the sleeper is considered when he
commits a criminal act. There will be a hypothesis of absence of behavior. Sleep is the regular and
periodic rest of the sensory organs and movement. , accompanied by muscle relaxation and a
decrease in various organic and nervous functions, as well as body temperature. Its function is to
repair the physical and mental energies spent while awake. The average number of hours of rest is
eight hours, but it varies significantly with age and even with sex, children and women sleep more
than adult men. Dreams or psychic process carried out while sleeping, and in which instinctive
activity of the spirit escapes the control of reason and will, they can be explained by the increase in
the activity of the nervous system, when a person works more than the necessary time
independently of a work activity, for personal reasons, has the habit and practices of sleeping little,
and when he does, his need to rest becomes more, his body requires it, his organism requires it
many times when it has not happened that one stays awake due to various circumstances, and
when he sleeps the desire to rest is so great. sleep that does not listen to what is happening around
it, there are exceptions, each person is different, in their way of sleeping, but what interests us is
that once in this state one finds oneself in an absence of will, it is said that the Being asleep is like
being dead, since when we sleep we do not know what is happening around us, we have a
disconnection with outside life, some authors enter the field of dreams, the spiritual, but we reach
the determination that sleep It is an absence of conduct.

QUESTION 52

What is hypnotism as a negative aspect of behavior?

Hypnotism: It is a procedure to produce the so-called magnetic dream, due to fascination,

personal influence or personal devices, and we find that in hypnotism several hypotheses about the
voluntariness of the subject to carry out criminal behavior in which we find:

a) That the subject is hypnotized without his consent and carries out conduct or acts classified by
criminal law; In this case the subject is not responsible, since his will is unrelated to what he is
doing, he is induced to commit a crime without his will.

b) That the subject is hypnotized with his consent for criminal purposes, it is in this hypothesis that
the subject is responsible, since knowing what hypnotism means and the things he can obtain and
even more, knowing the result of said act, he carries out said act. hypothesis.

c) That the subject is hypnotized with his consent, without criminal intent on his part. When the
subject, unlike the previous one, is fully aware that he is going to be subjected to a hypnotism
session, and as he states at the beginning, he knows its effects, he does not have the intention of
committing a crime. In the latter, the subject is responsible for a culpable crime, with guilt with or
without representation, as the case may be, when a subject undergoes a series of tests of a
psychic, supernatural nature or scientific tests, where his or her will, in some cases, if his will is
handled without his consent, he is exempt from all responsibility, but if he knows that by putting
his will in another person, and that he or she will use it for a criminal purpose, he is responsible
for intentional purposes. Well, your will, far from being at your disposal, is available to another
person, but with your consent.
QUESTION 53

What is sleepwalking for criminal law?

Sleepwalking is the unconscious psychic state through which the person suffering from abnormal
sleep has a certain ability to get up, walk, speak and do other things, without waking up to
remember anything. Some authors consider sleepwalking among the causes of non-imputability,
without However, we must consider it within the causes of absence of behavior due to the lack of
will of the subject. In the case of dreams, it is said that it is a way of manifesting the unconscious
state of the person, a part of the brain does not rest, which is what is It is responsible for
manifesting the events that have happened in the subject's life, which when there is an alteration
within it occurs in the form of sleepwalking, it is also considered a lack of will on the part of the
subject.

QUESTION 54

What is the criminal type in the doctrine?

The type, says teacher Ignacio Villalobos, is “the essential, objective description of an act that, if
it has been committed under ordinary conditions, the law considers criminal..., it is, therefore, a form
of determination of what is illegal and punishable, supposed normal conditions of the behavior it
describes.” For her part, teacher Olga Islas Magallanes says that “a type is a figure created by the
legislator with necessary and sufficient content to guarantee one or more legal rights.”

QUESTION 55

In short, what is meant by criminal type?

In other words, the type is the legal description of a conduct considered a crime that injures or
endangers legal assets protected by the criminal legal norm. It is a legislative conception. It is the
description of a conduct carried out within the legal precepts, which constitutes an instrument of
legal security by establishing, as a whole, the prohibitive conducts that may give rise to the
imposition of a penalty on the active subject of the punishable act.

QUESTION 56

What does the doctrine say regarding typicality?

Regarding typicality, we can consider that "the affirmation that a fact constitutes an illegal act
(the violation of the legal order) requires verification that the fact involves, firstly, the violation of a
norm, and secondly , the verification that this violation is not authorized. The verification that the
behavior violates a norm is the subject of "typicality", that is, the coincidence of the act committed
with the abstract description of the act, which is the presupposition of the penalty contained in the
law. Or, as correctly states the writer Francisco Muñoz Conde, pointing out that typicality “is the
adaptation of an act committed to the description of that act made in criminal law. Due to the
imperative of the principle of legality in its aspect of nullum crimen sine lege, only the acts classified
in criminal law as crimes can be considered as such.”

QUESTION 57

In short, what is meant by typicality?

Therefore, typicality is the adaptation of the conduct to the type, in other words, it is the real
framework for the legislative-penal hypothesis.
 QUESTION 58

Are the criminal type and typicality synonymous?

Once both fundamental concepts in the crime have been examined, it is convenient to affirm that it
cannot be accepted that the type (abstract world or legal hypothesis) and the typicality (real
behavior or concrete world) are legal synonyms, but rather, they maintain each other. like-minded.
Consequently, the ideas of the teacher Francisco Muñoz Conde illustrate this statement by pointing
out that the “type is, therefore, the description of the prohibited conduct carried out by the legislator
in the factual assumption of a criminal norm. Typicality is the quality that is attributed to a behavior
when it is subsumable in the factual assumption of a criminal norm.” And the type is precisely the
abstract figure created by the criminal-legal norm; On the other hand, typicality is the presence, it is
a human act, of the essential characteristics of the type.

QUESTION 59

What is the absence of the criminal type?

The absence of the type legally means that in the criminal legal system there is no typical
description of a certain illicit conduct. That is, if a Penal Code does not define a crime (type), no one
can be punished for it. An example of this is the classification of the crime of violation of jurisdiction
sanctioned by article 272 of the Penal Code of the State of Tabasco, and which literally says the
following: “A prison sentence of two to eight years and a fine of one hundred to three hundred days
will be applied.” , to the public servant who detains or takes criminal action against any of the public
servants referred to in article 69 of the Political Constitution of the State, without having issued the
declaration of origin referred to in the same provision. The same sanction will be applied to the
judge who institutes a criminal case against a public servant of those mentioned in the previous
paragraph and in the case provided therein. On the other hand, in the current Penal Code for the
State of Mexico it does not appear as a crime, and therefore, the absence of a criminal offense
occurs, and there will be no sanction for the commission of conduct of this nature.

QUESTION 60

What is the absence of typicality?

The absence of typicality occurs when a conduct does not fit the description, that is, there is a
criminal offense, but no classification of the typical conduct within the legal framework constituted by
the type; An example of this is the case of the crime of adultery that is typified by article 222 of the
current Penal Code for the State of Mexico, and which says: “A married person who, in the marital
home or with scandal, has copulation with another who is not "Whether it is her spouse or whoever
has it with her, knowing that she is married, six months to three years in prison and suspension of
civil rights for up to six years will be imposed." Even if the conduct of the active subjects is
consummated, both being married to different people, or one of them married and the other single,
but the conduct is carried out outside the marital home and without scandal, the crime of adultery is
not constituted, therefore that there will be an absence of typicality, and he rightly refers to the
teacher Miguel Ángel Cortes Ibarra that “conduct, then, is atypical when it is not fully subsumed to
that described by the law, because any of the elements that the type contains are not fulfilled.” .
 QUESTION 61

What are the resulting crimes?

In result crimes, they can be divided into instantaneous, permanent and state crimes; In instant
cases, the crime is consummated immediately with the consequence of a result, without this
situation lasting, homicide for example; In permanent crimes, it involves the prolongation of an
illegal situation by the will of the active subject of the crime, where it will continue to be
consummated until said situation is abandoned.

QUESTION 62

What are state crimes?

In state crime, the type only describes the production of the state and not its maintenance; The law
assigns effects to the moment of consummation of the crime, such as prescription, delimitation of
complicity and concealment, as well as the timeliness of the legitimate defense and time of the
crime.

QUESTION 63

What are the crimes of action and omission?

As for the crimes of action and omission, the first are those where the law prohibits the performance
of positive behavior and in those of omission the subject is obliged to act or carry out certain actions
and by not doing so he is punished by criminal laws.

QUESTION 64

What are the crimes of an act?

In crimes of one act, the legal type will require a single action, while in those involving plural acts,
the type will require the concurrence of several actions to be carried out, and in the alternatives, the
execution of an action is reflected in the legal system. or other action.

QUESTION 65

What does the Supreme Court of Justice of the Nation indicate regarding the classification of
crimes with respect to the order of type?

The Supreme Court of Justice of the Nation, regarding the classification of crimes in order of
type, has stated that "from a doctrinal point of view in relation to the autonomy of the types, these
have been classified as: basic, special and complementary. The basic ones are considered such
due to their fundamental nature and because they have full independence; The special ones imply
the maintenance of the basic type characteristics, but adding some other peculiarity, whose new
existence excludes the application of the basic type and forces the facts to be subsumed under the
special type, in such a way that it eliminates the basic type; Finally, complementary rates
presuppose the application of the basic rate to which they are incorporated. As examples, to
appreciate the scope of the previous classification, we can point out, within our federal legislation,
homicide as a basic type, qualified homicide as a complementary type and infanticide as a special
type. Embezzlement is a crime of special character, because the type contains a reference to the
active subject, in such a way that only those who meet the conditions or typical references in the
subject can commit this crime, the same happens in the so-called crimes of officials, which only
people who have such quality can commit. (Judicial Weekly of the Federation, volume XV, p. 68.
Sixth period. Second part.)

QUESTION 66

What is atypicality?

Atypicality is the lack of adaptation of the conduct to the criminal type. It is the negative aspect of
typicality, it is said that there is an absence of typicality in two cases: a) when all the elements of the
type described in the Penal Code or in criminal laws do not occur in a specific event, and since
there are several relationships and elements of the types, the hypotheses that can be conceived are
also different (atypicality); b) When the criminal law has not described the conduct that is actually
presented to us with an illegal characteristic, absence of typicality.

QUESTION 67

How are crimes classified according to their composition?

Due to their composition: According to this, they can be normal and abnormal.
Normal: These are those in which the type will be made up of objective elements, if the words used
refer to purely objective situations.
Abnormal: These are criminal types that, in addition to containing objective elements, are also made
up of subjective or normative elements.

QUESTION 68

How are crimes classified according to their methodological order?

Due to its methodological organization: Criminal types can be fundamental or basic, special and
complementary.
Fundamental or basic: These are the types with full independence, formed with illicit conduct on a
legally protected asset.
Special: These are the types that contain some type of characteristics in their description, that is,
to the basic type, some distinctive element is added, but without subordination.
Complemented: These are those that within their legislative description require the prior
completion of a basic type; They have no autonomy.

QUESTION 69

How are crimes classified according to their autonomy or independence?

Due to their autonomy or independence: The types can be autonomous or subordinate.

Autonomous: These are criminal types with a life of their own, they do not need the execution of
someone else.
Subordinates: They require the existence of some other type, they acquire life because of it.

QUESTION 70

How are crimes classified according to their formulation?

Due to their formulation: They can be casuistic and broad.

Casuistic: These are those in which the legislator proposes several ways of carrying out the
crime and not just one as in the other types, these can be alternative or cumulative.
Alternative: These are those where two or more hypotheses are proposed and the execution of
only one of them is required for the classification of the illicit conduct.
Cumulative: In this type, the realization or participation of all the hypotheses that the legislator
has expressed in the criminal type is required, for the adaptation of the conduct to it.
Broad: They contain in their description a single hypothesis, where all modes of execution fit,
that is, the criminal offense is met with the injury caused to the legally protected property, regardless
of the means used to carry out the illegal act.

QUESTION 71

How are crimes classified according to the type of damage they cause?

Because of the damage they cause: They can cause injury and danger.
Injury: They require a result, that is, imminent damage to the legally protected property.
Danger: The result is not necessary, but the simple risk in which the legally protected asset is put is
enough.

QUESTION 72

When does atypicality occur?

Atypicality will occur when it exists:

1. - Absence of typical adaptation due to lack of active subject.

2. - Absence of typical adaptation due to lack of passive subject or object.
3. - Absence of typical adaptation due to lack of temporal or spatial references.
4. - Lack of typical adaptation due to lack of the intended means.
5. - Absence of typical adaptation due to lack of subjective elements of the unjust.
6. - Absence of typical adaptation due to lack of regulatory elements.

QUESTION 73

What hypothesis is presented as a consequence of atypicality?

As a consequence of atypicality, we can cite its effects in three hypotheses:

a) Non-integration of the type

b) Transfer from one type to another type (type variation)
c) Existence of an impossible crime.

QUESTION 74

What is meant by illegality?

Concepts about illegality are abundant in criminal doctrine, therefore, we will mention two, which
we consider convenient due to their importance. The first corresponds to the writer Sergio Vela
Treviño, who states that it is “the result of the evaluative judgment of objective nature, which
determines the contradiction between a typical behavior and the legal norm, insofar as the behavior
is opposed to the cultural norm recognized by the state". For his part, teacher Enrique Bacigalupo
states that “it is a typical behavior or action that is not justified.”

In light of what is stated in this section, illegality is understood as the disvalue of a typical
conduct to the extent that it injures or endangers, without acceptable legal justification, the legally
protected interest.

QUESTION 75

Is illegality an element of the crime?

We can consider Illegality as a positive element of the crime, that is, when a behavior is illegal, it
is considered a crime, the crime is human conduct, but not all human conduct is criminal, it also
requires that it be typical, illegal and guilty. , or for the conduct of a human being to be criminal, it
must contravene criminal norms, that is, it must be illegal. Illegality is considered as the clash of
conduct with the legal order, which has, in addition to the normative order, the permissive precepts.
Various researchers have estimated it as the most important aspect, since it is not only an element
or character of it, but rather its absence, and what is more, its own nature, it was also given an
objective character, since Illegality is born of the evaluative judgment of the opposition between
human behavior and the criminal norm, manifesting this judgment only falls on the action carried
out, excluding any subjective assessment. But nevertheless, for some German criminal lawyers,
certain criminal acts contain a marked subjective character, highlighting the psychological attitude of
the agent in carrying out the behavior; For this reason, external conduct can be classified as legal or
illegal, depending on the meaning that the agent attributes to his act.

QUESTION 76

How is the absence of illegality understood?

When Illegality is lacking in a presumably criminal act, we can say: There is no crime, due to the
existence of a justification cause, that is, the individual has acted in a certain way without the
intention of transgressing criminal norms. Thus, if a man has killed another, in defense of his
unjustly attacked life, he will be in a cause of justification, excluding Illegality in the conduct of the
murderer. Within the causes of justification, the agent acts with conscious will, under normal
conditions of imputability, but his conduct will not be criminal because it is fair in accordance with
the law. This is how no liability can be demanded, whether criminal or civil, because whoever acts in
accordance with the law cannot harm a legal right.

Some Italian criminal lawyers have delimited the causes of justification and the causes of non-
imputability; the first, as external facts, such as legitimate defense, the state of necessity, etc. And
the latter have their exclusive or main cause in the subject's psyche, as is the case of mental
illnesses and age, among others. The causes of justification are those acts carried out in
accordance with the law, that is, those that lack the required Illegality to be able to classify them as
a crime.

QUESTION 77

How is self-defense defined?

Legitimate Defense is defined, according to Augusto Kehler, as: “The rejection of an illegal and
actual aggression by the attacked person or by a third person, against the aggressor when the
necessary measure for protection is not passed.”

Regarding the definition of Sebastián Soler, who defines it as: “Legitimate Defense is the
necessary reaction against aggression, current and unprovoked.

Celestino Porte Petit says: “Legitimate Defense is the necessary and proportional
counterattack or rejection of an unjust aggression, current or imminent, that endangers one's own
property or that of others, even when it has been insufficiently provoked.”

Therefore, it can be assured that every defense conceptually presupposes an offense and the
defense integrates the elements of the Institute in question, but is subject to certain requirements
imposed by the legal system.

QUESTION 78

What is the basis and nature of self-defense?

The first doctrine on the foundation of Legitimate Defense, Luis Jiménez de Asúa tells us,
quoting Kant, who maintains that “no necessity can transform justice and injustice, but since
necessity lacks Law, that is, as the moment of necessity, the Law cannot act effectively, it is obvious
that the case regarding the penalty cannot exercise any influence remains unpunished. Therefore,
private defense is not a blameless action, but only a non-punishable action.

The Penal Codes place among the exculpants, the Legitimate Defense of the person, honor or
property of oneself, or the defense of the life, honor or property of another person, and the use of
this Right is Consecrated.

QUESTION 79

What does the criminal doctrine indicate?

 For Vicenzo Manzini, who says that: “It is vain and fantastic to look for the foundation of
Legitimate Defense, as a justifying cause, outside of Positive Law and necessity. It is a duty of the
individual because when we say necessary defense, we mean a defense determined by necessity,
and not a defense that everyone attacked must necessarily make.

In this regard, Raúl Carrancá tells us: “That the natural foundation of private defense is
necessity, and the legal foundation is the affirmation of the right against those who deny it through
unjust aggression. Taking necessity as a comprehensive right of action (state of necessity).
Carrancá tells us in this regard: “The foundation of Legitimacy is the cessation of the right to punish,
which corresponds to society and is the responsibility of the social Authority and emanates from the
eternal Law of order.

Interpreting the thought of Master Carrancá, we consider that due to the momentary
impossibility of exercising public defense, the need arises for the Right to think that is the
responsibility of the competent authority, in which case humanity defends itself from evildoers by
exercising private defense, such as , which has earned it certain criticism since most of the authors
have private defense as a subsidiary. The exercise of Legitimate Defense represents an eminently
social function.

QUESTION 80

What is the state of necessity?

It is a situation of current danger for the interests protected by law, in which there is no other
remedy than the violation of the legally protected interests of another.

A State of Necessity is the foundation of Legitimate Defense that places man in a harsh
alternative: Either he remains inert to the attack of another, he tries to save his interest and his right
through an act that the Criminal Law considers a crime. If we keep in mind the instinct of self-
preservation and if a necessity forces us to proceed contrary to the prescriptions of the Law, the act
carried out does not deserve punishment, because man has the moral and legal duty to preserve
himself, the obligation to achieve their goals, having happiness, truth and justice.

QUESTION 81

As characterized?

It is characterized because in it two equally respectable goods are put into conflict and one of
them, due to a certain circumstance, is sacrificed in order for the other to be saved.

This negative aspect of Illegality is characterized by the existence of a conflict between goods
protected by law, in such a way that there is no other solution than the sacrifice of the lesser good to
save the higher one. Both legally protected by law, presence of the impossibility of both subsisting.

QUESTION 82

What is the analogy between the state of necessity and self-defense?

 The basis of the State of Necessity and Legitimate Defense is a preponderant interest.
If in the State of necessity the assets in conflict are unequal, and the minor perishes, there is a
cause of legality just as in Legitimate Defense.
Both in Legitimate Defense and in the State of Necessity (as a cause of legality) repair of
damage is not applicable.

QUESTION 83

What are the differences between the state of necessity and self-defense?

In the state of Necessity, there is a collision between legitimate interests, and in Legitimate
Defense, that is, a controversy between a legitimate interest and an illegitimate one.
In Legitimate Defense one repels the aggression and the other illegitimately attacks him,
therefore there is a rejection on the part of the attacked, while in the State of Necessity both are
illegitimate interests.
In the State of Necessity they are innocent subjects who fight to save the property that is in
danger, while in Legitimate Defense the person unjustly attacked is considered innocent.
In Legitimate Defense it always acts against a subject, while in the State of Necessity it can also
act against an object or an animal.
In Legitimate Defense there is a defensive spirit, while in the state of necessity we find a spirit of
conservation of something.
Legitimate Defense is always invoked as a cause of legality or a cause of blamelessness, due to
the non-enforceability of other conduct.
In Legitimate Defense, in certain cases, flight is admissible, and in a state of necessity, on the
contrary, flight is obligatory, when the danger is inevitable.

QUESTION 84

What are the elements of the state of necessity?

A situation of real, current or imminent danger.

That this danger has not been caused intentionally or through serious recklessness by the agent.
That the threat falls on any legally protected property of one's own or another's.
An attack by someone who is in the necessary state.
That there is no other practicable and less harmful means available to the agent.

QUESTION 85

What are the specific cases of state of necessity?

Therapeutic abortion.- Here we are dealing with two goods in conflict, both legally protected, the
life of the mother and the life of the being in formation, the lesser good is sacrificed to save the good
of greater value.
Theft of starving people.- The Federal Penal Code tells us in its Article 379, which literally says:
Anyone who, without using deception or violent means, seizes only once the objects strictly
essential to satisfy his personal needs will not be punished. or relatives of the moment.

QUESTION 86
 Can self-defense harm third parties?

An action of Legitimate Defense can affect a third party, both when a third party's property is
used as a means of aggression that must be injured to prevent it, and when a third party property is
used, and damaged, as a means of defending.

Since the innocent third party cannot be the object of a punitive defense, the defense situations in
which it may be involved are presupposed to those of the State of necessity, making it substantially
irrelevant to classify the damage caused under one heading or another, without However, there are
certain conveniences in analyzing in a unitary manner all the consequences of a defense situation,
in order to facilitate the comparison of the benefits and harms on which its legitimacy depends.

Of course, the innocent third party can act in accordance with the justifying state of necessity to
preserve their primary assets or assets of greater value.

QUESTION 87

What are the cases of lack of legitimate defense?

When the aggression does not meet the indicated legal requirements.
When the aggression does not give rise to an imminent danger to the protected property.
When the attacked party has provoked the attack, giving immediate and sufficient cause for it.

QUESTION 88

What does excess defense consist of?

Conscious or intentional excess will give rise to a responsibility of this kind, and unconscious
excess, whether culpable or blameless, will leave the fault subsisting or not, given the nature or
invincibility of the error.

In excess, it may happen that the victim does not make a correct estimate and, believing it
necessary to use certain means or cause certain damages, proceeds in this way to defend himself.
errors incurred, the exculpatory that always always brings with it the error regarding the perfect
concurrence of a cause of justification. In such circumstances there will be no exclusion of Illegality
or legality in the act, but there may be an exclusion of guilt, due to blameless error.

QUESTION 89

When does excess self-defense exist?

There is no rational need in it and, when there is a lot of disproportion between defense and
attack.

Excess in defense necessarily supposes the existence of aggression, with its essential
requirements, as well as a true, real defense, but in which the person carrying it out exceeds, by
virtue of an error about the need for the means used or the power. damaging to the defense.
 In such cases there is no Legitimate Defense, there is no legality in the act, because it is not in
the case justified by the Law.

QUESTION 90

What is putative defense?

This occurs when the asset wrongly represents the existence of an aggression and carries out
the acts of rejection that characterize Legitimate Defense in which case there is a lack of awareness
of the illegality, because by virtue of the essential error of responsibility. Therefore, to take into
account the respective allegation of the accused, it is not enough for him to mention that he
believed he was facing an imminent attack, but it is necessary, as in the case of normal Legitimate
Defense, that this circumstance be fully proven or that it is not oppose other means of conviction.

QUESTION 91

What are the elements of legitimate defense?

The essential elements for the integration of Legitimate Defense are the following:

An unjust aggression or attack.

A danger of damage arising from this.
A defense or a rejection.

QUESTION 92

What qualities should they have?

Which must have certain qualities:

The aggression must be:

Real,
That comes from human behavior.
Make it current.
Let it be with violence.
Without right and
Which results in an imminent danger.

QUESTION 93

What should that defense be like?

The Defense or reaction must be:

Unprovoked,
necessary,
 provided,
It can be executed not only by the victim but also by a third party.

The aggression or attack must be objective, otherwise there would be no Legitimate Defense,
since simple will, or will that is not acted upon or demanded cannot be considered criminal. This
aggression must be understood as human conduct carried out voluntarily aimed at injuring,
threatening or endangering legally protected interests. When aggression does not exist, there is no
Legitimate Defense.

Since the aggression is objective, the existence of material acts affecting the person or rights is
sufficient for the existence of the aggression or attack.

Aggression can only exist when a gun is threatened, and the production of any effect is not
necessary to consider the existence of aggression or attack. The materiality or objectivity of the
aggression can serve as a criterion to differentiate aggression from provocation, since This can be
verbal.

QUESTION 94

What characterizes aggressiveness?

Aggression to the right is different from violence, since aggression does not imply violation of the
right since it exists prior to the violation of the legal right endangered by the aggressor.

The aggression must be objective, not assumed, and also come from human conduct. For any
evil or damage caused, no matter how serious its individual or social consequences, cannot be
considered a crime if it does not have its origin in human conduct, that is, The events produced by
nature itself, without human intervention, cannot be considered criminal.

The aggression must be current, contemporaneous with the defensive act, that is, the
aggression must be carried out when the counterattack occurs, that is, the act through which the
attacked person repels the aggression. So repellence and aggression must be almost at the same
time.

This situation must be judged with caution to prevent the defensive reaction from turning into
revenge, such as the case of a person who waits days, months or even years to repel the
aggression suffered, in this case it will be another aggression on the part of the person previously
attacked. against his former aggressor, because before the danger appears, defense is not
necessary and when the danger has ceased it is superfluous, even though naturally, the threatened
person does not need to wait for his legal interests to be effectively harmed.

QUESTION 95

How is aggressiveness checked?

In order to prove Legitimate Defense, it is necessary not only to have unprovoked aggression,
coming from human conduct, and current, but also that it be violent, that is, carried out in an
untimely manner, in such a way that the attacked person cannot foresee it. nor avoid it, a criterion
accepted in the Supreme Court of Justice of the Nation.

The anticipation of aggression and the possibility of avoiding it by other legal means are a non-
existent cause of Legitimate Defense and, therefore, a negative condition of it. Going from being an
exclusion of responsibility to a mitigating factor such as the Fight, since if the aggression was
foreseen and could easily be avoided, there was a will to contain it on both sides.

The avoidability or non-avoidability of the aggression gives rise to the problem of flight. It is a
general opinion that the attacked person does not have the duty to flee as a means of avoiding the
aggression, because if sometimes a retreat can free them from the attack, many times the Fleeing
usually does not avoid danger and, for this reason, it finds itself in the dilemma of allowing itself to
be killed or injured, or of killing its aggressor.

The aggression must also be illegal, that is, the attacker must not have any legal basis for it, no
legal rule must authorize the aggressor to attack in a manner that violates the legal order.
Therefore, it can be stated that the aforementioned aggression must be without law.

QUESTION 96

How is legitimate defense outlined?

Self-defense must be presented as:

Rejection of an Aggression:
Repel is equivalent to reject, prevent, avoid.

QUESTION 97

What should legitimate defense be like?

The Aggression must be:

Real.
Objective, true, concretely existing and not imaginary.
Current.
Contemporaneous with the act of defense, which is contained, or very close and not remote.
No right.
Illegal, illicit, contrary to objective norms of law. If the aggression is just, the reaction cannot be
legitimized.

QUESTION 98

Who owns legitimate defense?

The aggression must fall on the legal property of the person defending or of third parties who are
being defended; the property may belong to natural or legal persons.
to the person.

The attacks on the person can be on their life, bodily integrity and physical or sexual freedom.

b).- The Honor.

The Law confuses the concept of honor with that of reputation. Homicide or injury to the adulterer(s)
does not constitute a Legitimate Defense of honor.

c).- Other Goods.

All those of a patrimonial, corporeal nature and subjective rights susceptible to aggression.

QUESTION 99

When is self-defense presumed?

It will be presumed that the requirements of Legitimate Defense are met, unless proven
otherwise, with respect to anyone who causes harm to someone who, through violence, escalation
or by any other means, tries to enter, without right, their home, of his family, his dependencies or
those of any person who has the same duty to defend or the place where his own or other people's
property is located, with respect to which he has the same obligation. , Or find it in one of those
places in circumstances such that they reveal the possibility of aggression.

QUESTION 100

When is there a rational need for a defensive reaction?

It is not Legitimate Defense in the absence of a rational need to use it. There is no Legitimate
Defense when through sufficient and immediate provocation by the attacked person or by the
person.

QUESTION 101

How far does legitimate defense extend?

Initially, Legitimate Defense only contemplated the defense of life or physical integrity. But later
the defense of all the rights established in the codes was taken into account, in the current Federal
criminal code the Institution of Legitimate Defense is found within its section IV.

As we can see, current legislators have extended the right of defense to all legal assets, whether
their own or those of third parties.

It is evident that every human person can be defended. The problem begins to complicate if it is
understood that the capacity to defend must coincide with the criminal legal capacity or imputability,
or is independent, so that the mentally ill person or the minor can validly defend themselves.

QUESTION 102
 What are the essential elements of self-defense?

This being so, we can determine that the essential elements of Legitimate Defense are:

Unjust aggression
A danger of harm arising therefrom, and
A defense or action to repel said aggression.

QUESTION 103

What subjects intervene in legitimate defense?

Dr. Porte Petit has collected the hypotheses that can be presented with respect to the subjects in
Legitimate Defense:

Legitimate self-defense: There are at least two subjects, the unjust aggressor and the one who
legitimately defends himself.
The Legitimate Defense in favor of third parties is at least three subjects, the unjust aggressor,
the unjustly attacked and the one who intervenes in favor of the latter.

QUESTION 104

Who is the active subject in self-defense?

For Manzini, only a man with the capacity for criminal and imputable law can be an active subject
of this cause of exclusion of liability. He adds that it is not doubtful that also the person who suffers
from some mental insufficiency, for example, can defend himself against the danger of offense, but
his defense regarding the right has no greater value than that of the but who bites the leg. of
whoever hits him.

In short, we say that any attributable person can be an active subject of the Legitimate Defense,
so then the unborn, but already conceived, and corpses, the insane, minors and those who enjoy
privileges are not active subjects of the Legitimate Defense. Due to their functions and adolescents,
they can be defended by a third party.

QUESTION 105

Against whom is legitimate defense possible?

Legitimate Defense is possible against any attack or imminence, of a Legitimate nature, that
comes from a person, regardless of whether that person is attributable and even less so that he or
she enjoys privileges, or whether he or she is an agent of Authority, when he or she exceeds its
functions.

QUESTION 106
 What is the principle of guilt?

It arises as an individual guarantee, forming part of the set of postulates of the Rule of Law,
acting as limits of punitive power, becoming necessary elements for the attribution of criminal
responsibility, as well as for the imposition of the penalty.

Guilt being a presupposition of the punishment, the criminal is considered by Criminal Law as a
person whose legal responsibility is composed of the harmfulness of the act committed and the
internal attitude that led him to act in such a way.

QUESTION 107

What are the consequences of the opposite principle of guilt?

Those are the following:

Responsibility for one's own act.

Compensatory civil liability.
Liability of legal persons.

Criminal liability of act.

Criminal liability of the author.
Social Defense Theory.

Subjective criminal liability.

Objective civil liability.
"Versari in re illicit"

QUESTION 108

What is responsibility for one's own act?

In responsibility for one's own act, the Subject is only responsible for his or her conduct; he or she
will never be responsible for conduct carried out by third parties.

QUESTION 109

What is criminal responsibility for the act?

In the criminal responsibility of the act, the act committed and everything that concerns it must be
taken into account; but personal conduct of the author should not be taken into account to attribute
responsibility for the act.

QUESTION 110

What is subjective responsibility?

 In subjective criminal liability, the Subject must necessarily be attributable, have full knowledge
of the norm and that his or her actions are contrary to it.

QUESTION 111

Is guilt an element of the crime?

It is. Although the different Schools differ regarding some component elements of the crime, they
all conceive guilt as its fundamental category. Meaning the mental attitude of the author at the time
of consummating the typical and illegal act, susceptible to reproach, since in a given situation the
author could have reacted in a different way.

QUESTION 112

What is the position of the doctrine?

The authors' positions regarding guilt are as follows:

* Roxìn * Calls Guilt, "Normative Addressability", alluding to the fact that the subject, having the
capacity and knowledge of the norm, does not react by virtue of it.

* Mir Puig * Relates Guilt to "Motivability", that is, the subject, knowing the norm, is not motivated by
it when acting.

* Jackobs* Conceives it as a "General Prevention", since the guilty party - who has been unfaithful
to the Law - will suffer a sanction that will be known by society, and society, upon envisioning the
consequences of the commission of an illicit act, will not infringe the rule.

QUESTION 113

What is guilt?

Concepts about guilt are abundant in criminal doctrine, and for the purposes of our study, we will
only focus on two.

Teacher Sergio Vela Treviño states that guilt “is the subjective element of the crime and the link
that associates the material of the typical and illegal event with the subjectivity of the author of the
behavior.” This means that guilt is the result of a trial in which the active subject is reproached for
having acted contrary to the legal-criminal norm, that is, illegally, when behavior appropriate to the
normative claim was required and that the reproach, which is due to the specific act carried out, is
directed at the total personality of the active subject of the punishable act.

For his part, the Spanish writer Eugenio Cuello Calón maintains that guilt “can be defined as the
judgment of disapproval for the execution of an act contrary to what is mandated by law. The notion
of guilt is closely linked to that of illegality, without illegal conduct there is no guilt, the former is a
precondition for the existence of the latter.

QUESTION 114
 How is guilt explained?

Thus, guilt represents the most relevant subjective aspect of the illicit-criminal act since it
embodies the moment of its connection with the active subject of the punishable act. In this way,
illegality is related to the type, constituting anti-normative characteristics of the punishable act; while
guilt, an evaluative judgment of the active subject and his conduct, gives rise to the legal-criminal
reproach of the same. Guilt leads to the blameworthiness of the typical and unlawful conduct, in the
absence of causes of guilt.

In this way, we understand guilt as the conscious attitude of the will that gives rise to a judgment
of reproach regarding the active subject of the punishable act acting in an unlawful manner, being
able and should act differently. In this way, guilt takes the profile of a true disposition of mind on the
part of the active subject to act consciously towards carrying out a behavior that is typical and
illegal. Thus, by behaving illegally while being able to do so in an appropriate manner; For this
reason his behavior is reprehensible.

QUESTION 115

How do theories influence the concept of guilt?

Guilt is defined as when a criminal conduct is not only typical and illegal but also guilty; it is
considered guilty when, due to the psychic relations existing between the conduct and its author, it
must be legally reproached; it is said that the concept of guilt, will depend on the theory adopted,
since that of a Psychologist will not be the same as that of a normativist or a finalist, thus the former
say that guilt consists of the psychological link that unites the subject with the behavior or the
material result, for this conception, guilt lies in a fact of a psychological nature, leaving all legal
assessment for Illegality, already assumed; The essence of guilt consists of the intellectual-volitional
process developed in the author. The study of guilt requires the analysis of the agent's psyche, in
order to specifically investigate what his attitude has been regarding the objectively criminal result.
The truth is that psychologically based guilt consists of a psychic link between the subject and the
result; which means that it contains two elements: a volitional, emotional one and an intellectual
one. The first indicates the sum of two wants: the behavior and the result; and the second, the
intellectual, the knowledge of the Illegality of the conduct. There are other doctrines that tell us, guilt
is considered as the subjective relationship that mediates between the author and the punishable
act, and as such, its study involves the analysis of the author's psyche, in order to specifically
investigate what the conduct has been. psychological that the subject has kept in relation to the
objectively criminal result.

QUESTION 116

What does guilt consist of for normativists?

For normativists, guilt consists of the psychological link between the subject and the material,
blameworthy behavior or result. For this doctrine, being guilty constitutes a judgment of reproach; A
conduct is culpable if a capable subject who has acted with intent or guilt can be required by the
normative order to conduct a conduct different from that carried out. The essence of normativism
consists in substantiating guilt, that is, the judgment of reproach, enforceability or imperativeness
directed at subjects capable of behaving in accordance with duty. Enforceability only obliges those
responsible who in the specific case can behave in accordance with what is ordered. Thus, guilt
does not arise in the absence of being able to behave with normative demands, due to the lack of a
basic element of the judgment of blameworthiness. This judgment arises from the weighing of two
terms: on one side, a real situation, a malicious or culpable conduct whose author could have
avoided; and, on the other, a normative element that required behavior in accordance with the law;
that is, the duty is legal. For this new concession, guilt is not only a simple psychological link that
exists between the author and the fact, nor should it be seen only in the author's psyche; It is
something more, it is the assessment in a blame trial of that psychological content, guilt, considered
as blameworthiness of the subject's conduct when committing the criminal event, is based on the
enforceability of a conduct in light of duty.

QUESTION 117

How do normativist and psychological theories coincide?

Both psychologists and normativists agree that in a crime not only does the act (objectively
considered) have to be contrary to the law and of course to the values that the laws protect, but that
subjective opposition is necessary, that is, that the author is also in conflict with the legal order. For
the finalists, they affirm that guilt is the blameworthiness of the conduct, without considering fraud
as an element of guilt, but rather of the conduct.

QUESTION 118

What are the forms of guilt?

Guilt takes two forms; fraud and guilt, depending on whether the agent directs his conscious will
to the execution of the act classified by law as a crime, or causes the same result through his
negligence or recklessness. A crime can be committed through a certain criminal intention (fraud),
or by neglecting the essential precautions required by the state for gregarious life (guilt).

QUESTION 119

What are the assumptions of guilt?

And the necessary presuppositions or premises of guilt are: the capacity for self-determination or
capacity for guilt (imputability); and the ability to understand what is illegal (possibility of
understanding the unjust conduct in which the subject acts contrary to the rule of criminal law).

Thus, when said attitude is oriented towards a typically illegal purpose, fraud arises; and when,
on the other hand, it is directed towards an indifferent purpose, we are faced with guilt.

QUESTION 120

What is fraud?

In fraud, the agent, knowing the significance of his conduct, proceeds to carry it out. In conscious or
forethought guilt, the act is performed with the hope that the result will not occur; In the unconscious
or without foresight, a foreseeable result is not foreseen, there is also neglect of the interests of
others. In both the intentional and negligent forms, the subject's behavior translates into contempt
for the legal order. The guilty act is reproached because when executing it, personal motives are
given preponderance over the interests or motives of social solidarity in competition; and because
having obligations to maintain discipline and the limitations imposed on individual expansion, and all
the care necessary to not cause damage, this duty is ignored or postponed, wanting only to enjoy
the rights and benefits that the organization provides, without disregarding in nothing of what whim
or desire dictates, even to the detriment of other men and as if the actor were the only one worthy of
merit.

QUESTION 121

What does the doctrine say about it?

In this order of ideas, writers have defined fraud, and that in the opinion of teacher Eduardo
López Betancourt, "consists of the knowledge of the realization of circumstances that belong to the
type and willingness or acceptance of realization of the same." For teacher Eugenio Cuello Calón,
“fraud can be defined as the conscious will directed to the execution of an act that the law foresees
as a crime.” While the Supreme Court of Justice of the Nation has said in definitive jurisprudence
that "fraud is, in criminal matters, the knowledge that the agent who executes it has of the criminal
nature of an act." Therefore, fraud is a way of intentionally causing the typical result, with knowledge
and awareness of the illegality of the act. Thus, fraud operates when the active subject has
represented in his mind the behavior that he is going to perform and the result of a behavior, and
decides in an act of will to carry out what was represented in his mind. Willful conduct is intentional
and voluntary.

QUESTION 122

What does fraud consist of?

Fraud consists of the conscious will directed to the execution of an act that is criminal, or simply
the intention to execute a criminal act, a definition provided by Eugenio Cuello Calón, for Jiménez
de Asúa, defines fraud as the production of a result unlawful, with awareness that the duty is
breached, with knowledge of the circumstances of the fact and the essential course of the causal
relationship existing between the human manifestation and the change in the external world, with
the will to carry out the action and with representation of the result that is wanted or ratified.

QUESTION 123

What does the Classical School say regarding fraud?

The classical school defines fraud. As the more or less perfect intention to execute an act that is
known to be contrary to the law. Deception is the most obvious voice of guilt, to substantiate fraud it
is essential to unite two theories: one called will and the other called representation.

QUESTION 124

What elements does fraud contain?

Fraud contains an ethical element and another volitional or emotional element. The ethical element
is constituted by the awareness that duty is breached. The volitional or psychological consists of the
will to perform the act; in the volition of the typical fact.

QUESTION 125

Is there another explanation regarding the elements of fraud?

Yeah. Regarding the elements that make up fraud, teacher Eduardo López Betancourt correctly
points out that “fraud is composed of the following elements: a).- Intellectual. It implies knowledge
by the subject who performs circumstances belonging to the type, and, b).- Emotional. It is the will
of the behavior or the result.” In this way, we can point out, in the same way, that the elements of
fraud are moral and psychological: the first contains the feeling, the awareness that a legal-criminal
norm is violated and brings with it consequences of that nature; and the psychological is the will, the
decision to carry out the typically illegal behavior.

QUESTION 126

What is direct fraud?

There is direct fraud when the conduct or the result is desired, there is voluntariness in the conduct
and wanting the result, direct fraud occurs when the result corresponds to the agent's intention.

QUESTION 127

What is eventual fraud?

Eventual Deceit: In this type of deceit there is a representation of the result, but there is no
voluntariness of it, because the result is not wanted, but rather it is accepted if it occurs, here the
subject is aware that a result may occur. , it may be possible, and yet he acts to make it happen,
without even trying to prevent it from happening.

QUESTION 128

What is indirect fraud?

Indirect Deceit: Also known as deceit of necessary consequence, it occurs when the agent acts
with the certainty that it will cause other criminally classified results that it does not directly pursue,
but even preventing a certain occurrence, it executes the act. It exists when the agent represents a
criminal outcome as possible, and despite such representation, does not renounce the execution of
the act, accepting its consequences.

QUESTION 129

What is determined fraud?

 Determined: This type of fraud forms the direct intention. There is determined intent when the
intention is exclusively and unequivocally directed towards the crime committed.

QUESTION 130

What is indeterminate fraud?

It is one in which the intention is not directed at a single and exclusive result, but rather
indifferently at several results, more or less serious. When the subject represents himself and wants
the production of a result, from that malicious desire for the result, and only from him, another
greater one arises.

QUESTION 131

What is initial or preceding fraud?

It is one that already exists before the consummation of the crime, it precedes the beginning of
the iter criminis. The agent is responsible, whether he arrives with the same state of mind at the
consummation, or whether it is carried out after he has changed his purpose.

QUESTION 132

What is the subsequent solo?

The fraud is subsequent when the agent having begun the execution of an act that does not
constitute a crime, the illegal will to carry out a criminal act occurs, this fraud is also known as
supervening, it occurs when the subject begins an action in good faith, and then An illegal desire
occurs that leads him to commit a crime.

QUESTION 133

What is generic fraud?

Fraud is generic in that it channels the will to produce a legally prohibited result.

QUESTION 134

What is specific intent?

When the will tends to achieve a special purpose, required by law to distinguish a title of crime
from another.

QUESTION 135

What is intentional harm?

 There is intentional damage when the result that the agent tends to produce is effective damage,
that is, the destruction or real diminution of a legal asset.

QUESTION 136

What is dangerous intent?

This occurs when the agent initiates an action aimed at causing effective damage, and the
product is nothing more than a danger.

QUESTION 137

What is intentional damage resulting in danger?

This is characterized by the fact that the intention is aimed at causing damage, and the law, for
reasons of social protection, takes for granted the consummatory moment prior to the execution of
the damage.

QUESTION 138

What is the intent of danger resulting in damage?

In the intention of danger resulting in damage, the will is aimed at causing the danger, and only
the Punishability is conditioned on the verification of a harmful effect.

QUESTION 139

What does the finalist theory indicate in this regard?

The finalist doctrine takes into account the motive or end that the agent wanted to obtain, said
end makes the subject carry out a certain action, which can have a typical result, mediating a causal
link, the content of the will is studied within the typical action, which denotes that this is an act aimed
at obtaining a specific end, in which not only the action but also the possible secondary results are
foreseen. At the level of typicality we can distinguish between intentional and culpable actions; This
distinction is made in traditional doctrine in the sphere of guilt.

QUESTION 140

What is guilt?

Fault exists when one acts without intention and without due diligence, causing a harmful result,
foreseeable and punishable by law; someone who violates a duty of care that personally concerns
them and whose result they can foresee acts negligently. We consider that fault exists when the
conduct is carried out without directing the will to produce a typical result, but this arises despite
being foreseeable and avoidable, due to failure to put into play, due to negligence or imprudence,
the legally required cautions or precautions. Since human conduct is necessary for the existence of
the crime, it will constitute the first element; That is, a voluntary act, positive or negative, secondly
that this voluntary conduct is carried out without the precautions or precautions required by law;
third, the results of the act must be foreseeable and avoidable and criminalized; Finally, it requires a
causal relationship between the initial doing or not doing and the unintended result.

QUESTION 141

What does the doctrine say regarding guilt?

Regarding guilt, teacher Eugenio Cuello Calón says that “fault exists when acting without
intention and without due diligence causes a harmful, foreseeable and punishable result.” According
to this definition, the existence of fault requires: voluntary conduct but without intention to commit
any punishable act (crime), foreseeability of the result caused, omission of due care, precautions or
necessary precautions; and finally, causal relationship between the action executed and the typical
effect produced.

In this sense, the teacher Miguel Ángel Cortes Ibarra refers, who “acts culpablely, who without
foreseeing the result, being foreseeable and avoidable, or having foreseen it trusting that it will not
occur, produces typical criminal damage. From this notion the following elements emerge: a).-
Conduct (action or omission); b).- Typical criminal damage; c).- Lack of forecast of the result being
foreseeable; or having foreseen it, hope that it will not happen; and, d).- Causal relationship
between the conduct and the damage caused.”

Finally, our highest court says that “the essence of guilt lies in acting without taking into account
the precautions and precautions required by the State to prevent damage of any kind from being
caused.” Therefore, the subject who commits a culpable punishable act, provided for in criminal law,
causes a typically illegal result, without fraud, is configured as one who did not foresee what he
could and should have foreseen, or when, having foreseen it, he does not do what is necessary. to
avoid the harmful event through conduct contrary to that observed and resulting in criminal liability.

QUESTION 142

What are the elements of guilt?

The elements of guilt are the following: a).- Positive or negative behavior; b).- Absence of care or
precautions required by the criminal-legal standard; c).- Typical, foreseeable, avoidable, unwanted
result; and, d).- A causal relationship between the behavior and the result.

QUESTION 143

How many types of guilt are there legally?

There are two main types of guilt: conscious, with foresight or representation, and unconscious,
without foresight or without representation.

QUESTION 144

What is conscious guilt, with foresight or representation?

 Conscious guilt, with foresight or representation, exists when the agent has foreseen the typical
result as possible, but not only does he not want it, but he hopes that it will not occur. There is
voluntariness of the causal behavior and representation of the possibility of the result; this one is not
wanted.

QUESTION 145

What is guilt is unconscious, without foresight or without representation?

Guilt is unconscious, without foresight or without representation, when a foreseeable result is not
foreseen (criminally classified). There is voluntariness of the causal behavior, but there is no
representation of the result of a foreseeable nature. This type of guilt occurs when the subject did
not foresee a result due to lack of diligence. It is a behavior where the foreseeable and avoidable is
not foreseen, but through which a criminally defined consequence is produced.

QUESTION 146

How many forms of exclusion are there from guilt?

There are two ways to exclude guilt, one broad and the other narrow .

QUESTION 147

What is the broad compliance exclusion?

The broad one: it excludes both the guilt and the dangerousness of the author, therefore, he is
released from the scope of Criminal Law, also leaving the security measures without application.

QUESTION 148

What is the restricted fault exclusion?

The restricted: It only excludes guilt , leaving the dangerousness of the subject subsisting, which
justifies the imposition of security measures, maintaining the need for special preventive reactions.

QUESTION 149

What is the prohibition error?

It is necessary that whoever acts knows the typical figure or situation, as well as knows the
illegality of the act. When the subject does not have this capacity for knowledge and discernment,
there is a prohibition error, which can be overcome or invincible .

QUESTION 150

What is the invincible error?

 The subject, due to lack of care, has not noticed the illegality of the act - imprudence iuris - giving
rise to a mitigation of criminal responsibility.

QUESTION 151

What is defeatable error?

The subject does not commit a violation of the primary criminal norm, since he does not have the
personal capacity to avoid objectively devalued conduct, nor does he have the possibility of knowing
the illegality, thus excluding the primary condition of guilt, also called individual attributability. ; thus
concretizing the impunity of the subject.

QUESTION 152

What explains the theories about the prohibition error?

Theory of Dolo: Responds to causalist systematics, conceiving guilt as "dolus malus."

It unifies the knowledge of the fact and the knowledge of the illegality, attributing the same
solution to whether it is a type error or a prohibition error . Where a difference arises is between the
conquerable error and the invincible error , despite the fact that in both cases fraud is excluded.
However, in invincible error , criminal responsibility is absolutely excluded, both for fraud and
recklessness; On the contrary, in viable error, fraud is excluded, but not criminal responsibility in its
entirety since there is a crime founded on recklessness.

QUESTION 153

What does the guilt theory explain regarding the prohibition error?

Theory of guilt: Makes a differentiation between fraud and knowledge of illegality, basing this
distinction on type error (fraud) and prohibition error (guilt). The prohibition error can only exempt
criminal liability if it is an invincible error, or in the case of a viable error, the attenuated intentional
crime, but it can never exempt criminal liability in a reckless crime.

The indirect prohibition error has led to the emergence of two new theories:

QUESTION 154

What does the theory of guilt explain from finalism regarding the error of prohibition?

Strict Theory of Guilt: (Finalism) "It provides the same treatment to the error about the existence,
about the limits and about the factual presuppositions of the causes of justification" (Lascano).

In an invincible prohibition error, there is no guilt, in a viable error, there is an attenuated

intentional crime.

QUESTION 155
 What explains the restricted theory of guilt in the prohibition error?

Restricted theory of guilt : gives the two possibilities of indirect prohibition error different
treatments and solutions; Regarding the error about the existence and limits of a cause of
justification, he considers it as an error of prohibition, and the error about the factual assumptions of
causes of justification , he considers it as a type error, which affects the unfair type, but not to guilt.
This is related to the "Theory of negative elements of the type", which considers the factual
presuppositions of a cause of justification as an element of an unjust type.

QUESTION 156

What is grief?

Professor Constantino Bernardo Quiroz defines punishment as “the legally organized social
reaction against crime; For teacher Fernando Castellanos Tena, punishment “is the punishment
legally imposed by the State on the offender to preserve the legal order”; For Jorge Ojeda, the
penalty “is the real deprivation or restriction of the property of the perpetrator of the crime that the
executive branch carries out for special prevention, legally determined at its maximum by the
punishment imposed, and at its minimum by certain temporary and personal of the prisoner who
suffers it.”

For the German writer Jeremías Bentham, “he understood punishment as the imposition of an
evil on a person for his action or omission carried out by him. Its main purpose is generalized
prevention. Particular prevention tends to disable the offender from causing harm, making amends
or intimidating him. The need justifies the penalty. For the Spanish Eugenio Cuello Calón,
punishment is the suffering imposed by the State in the execution of a sentence, to the guilty of a
criminal offense; For Feuerbach, starting from the fact that the purpose of the State is the
coexistence of men, in accordance with legal norms, he considers punishment as the punishment
justified by the State in its interest of protecting society.

From the previous definitions it can be said that punishment is the punishment that is
imposes on a person (criminal or active subject of the crime) through the judicial resolution issued
by the competent judge in a sentence, for having committed a typical, unlawful and guilty act, and
which consequently is the conservation of the established legal order and which must bring about
social peace.

QUESTION 157

What do absolute theories of punishment explain?

Absolute theories find the justification of punishment exclusively in the crime committed.
Punishment is compensation for the evil caused and its possible preventive effects are foreign to its
essence, since if it were justified by its preventive effects, the offender would be used as an
instrument to achieve those ends.

QUESTION 158
 What do relative theories explain?

Relative theories base punishment on its necessity to prevent future crimes. The penalty is
justified by its preventive effects. General prevention is usually distinguished. and special
prevention. general prevention. The threat is identified and the application of the penalty can instil
fear in potential criminals and cause them to refrain from committing the crime.

Special prevention involves the offender to prevent him from reoffending in the future. It usually
includes aspects of individual warning or intimidation, correction or amendment, and separation
when dealing with incorrigible or impossible offenders.

QUESTION 159

What do unitary theories explain?

Unitary theories recognize that retribution constitutes the essence of punishment but consider
that it must simultaneously pursue the purposes of general prevention. and special prevention.

Some of its representatives distinguish between the basis and purposes of the penalty and
consider that the basis of the penalty is constituted exclusively by retribution. They therefore support
an absolute theory, although they also assign the purposes of general prevention to punishment.
and special prevention.

Other authors (Antón Oneca) support a relative theory since they justify the penalty exclusively
by its necessity to avoid the commission of future crimes. For him, only the punishment
proportionate to the seriousness of the crime will be exemplary. Later he abandons the idea of
retribution as the basis of punishment and guilt appears only as its limit by virtue of the
requirements of the Rule of Law.

QUESTION 160

What do mixed theories say about punishment?

These theories try to harmonize the diverse points of view of the two theories previously
explained, that is, they try to associate absolute justice (absolutist theories) with socially useful ends
(relative theories). Punishment is applied by reconciling the retributive concept of punishment and
its utilitarian purpose. The crime is the reason for the punishment and retribution is the essence of it,
but without forgetting the maintenance of order and future social good as the purposes of the
punishment.

In other words, these are theories that seek to justify punishment in its capacity to repress
(retribution) and prevent (protection) at the same time. Punishment will be legitimate to the extent
that it is both just and useful. The values of justice and utility, which in absolute theories are
exclusive, and which in relative theories are contemplated only through the preponderance of utility,
are united in these theories.
 They admit that the repressive and preventive purposes of punishment may not coincide and
may even be antinomic. The just punishment with respect to the act or conduct committed may be
insufficient for the perpetrator of the crime and his needs. According to this, the usefulness of the
penalty can be legitimately contemplated as long as it is not required to exceed or mitigate the just
penalty.

QUESTION 161

What is the purpose of punishment?

The dominant doctrine affirms that punishment must aspire to the following purposes: to act on
the offender, creating in him, through suffering, reasons that separate him from crime in the future
and reform him to readjust to social life. In the case of maladjustments, then the purpose of the
punishment is the elimination of the subject. Furthermore, it must pursue exemplarity, making
peaceful citizens aware of the need to respect the law. Undoubtedly the ultimate purpose of
punishment is the safeguarding of society.

QUESTION 162

Why is grief intimidating?

Intimidating, as all true penalties are, but exclusively with fines and imprisonment; and the legal
good is affected, since “the prison sentence is undoubtedly an affectation of the legal good of
freedom; The fine affects your assets.

QUESTION 163

Why is punishment exemplary?

Exemplary, since there is not only a combination of theories in the Penal Codes (Federal, Military
and State), but also that every subject classified as a criminal knows and feels that the state threat
is effective and real.

QUESTION 164

Why is punishment corrective?

Corrective, not only because being a penalty it should make one reflect on the crime or crimes
they cause, to constitute an educational and healthy experience, but when it affects freedom the
time of its duration should be taken advantage of to carry out the teaching treatments, curatives or
reformers that in each subject are indicated to prevent recidivism.

QUESTION 165

Why is the penalty eliminatory?

Eliminatory, that is, temporarily while it is believed that the sentence can be amended and its
dangerousness eliminated; or perpetually if they are incorrigible subjects, perhaps this type of
sanctions, since every addition that previously wanted to give them greater afflictive character has
been suppressed, corresponds rather to the security measure, and even when very respectable
opinions reject the exclusivity of this character by not having seen the intimidating effect that does
not emerge from them.

QUESTION 166

Why is the penalty fair?

Fair, since the social order must try to maintain balance, therefore justice must be fair, not trying
to exceed the limits that are set in the criminal law itself, giving each person what is due to them in
order to avoid this way private or public revenge.

QUESTION 167

What are the actual penalties?

Penalties:
I.- Prison;
II.- Fine;
III.- Repair of damage;
IV.- Work in favor of the community;
V.- Suspension, dismissal, disqualification or deprivation of employment, position or commission;
VI.- Suspension or deprivation of rights;
VII.- Special publication of sentence;
VIII.- Confiscation of assets resulting from illicit enrichment; and
IX.- Confiscation of the instruments, objects and effects of the crime.

QUESTION 168

How are penalties classified by their method of application?

Due to its form of application it can be:

1st.- Main, since they are those that the criminal law indicates for the crime and the judge
must impose in his sentence.

2º.- Complementary, that although indicated in the criminal law, their imposition can be taken
as optional, since they are penalties added to others of greater importance and that for this reason,
due to their nature and their purpose, they are considered secondary.

3º.- Accessory, since without the express mandate of the judge they are automatically added to
the main sentence, for example, that the sentenced person cannot be an executor, losing parental
authority over a minor or incapacitated person, or suspension of family rights, among others. .

QUESTION 169
 How are penalties classified by their predominant purpose?

Due to its predominant purpose it can be:

1º.- Intimidatory, are those that are taken as such with the exclusive use of a fine and short-
term imprisonment.

2º.- Corrective, with the character that must also be assumed in all punishment except those
that resort to definitive elimination.

3º.- Eliminators, which are in a short time, such as those that deprive or restrict freedom.

QUESTION 170

How are penalties classified by their protected legal interest?

For the legal asset attacked, they are:

1st.- Capital punishment, which deprives the offender of his life.

2º.- Corporal penalties, which are those that are applied directly to people, such as brands,
for example.

3º.- Penalties against freedom, which can only be those that restrict this right, such as
confinement, or those that deprive one's freedom: prison.

4º.- Pecuniary or Economic, which impose the delivery or deprivation of some assets valued in
money.

5º.- Against other rights, such as the suspension or dismissal of public functions, jobs or public
positions, which is evident in the disciplinary system that regulates the law on the matter.

QUESTION 171

How is the characteristic that the penalty is legal explained?

It is legal, since it is, in effect, a self-regulated and controlled power, a political-legal power. This
state power is exercised over certain people as the main legal consequence of illegal and
punishable conduct; since this assumes that there exists in criminal law a list of conducts that are
criminally sanctioned.

QUESTION 172

How is the characteristic that the penalty is public explained?

It is public, since the exercise of this power is a preeminent monopoly of the State regulated by
public and penitentiary law. The seriousness of the criminal consequences requires that they be
administered by a state body independent of the government and, as far as possible, inaccessible
to all types of social pressures, just as the jurisdictional branch of public power should be configured
in a State of Law.

QUESTION 173

How is the characteristic that grief is afflictive explained?

c).- It is afflictive, you can think anything about it, define it in any way, attribute to it any desired
purpose, but no one can turn punishment into a reward without abolishing it. Punishment causes
suffering and generates pain, although it no longer and cannot consist directly and immediately in
them, nor can it pursue them as essential ends. Affliction cannot be an end of punishment, but it
cannot fail to be one of its most salient psychosocial effects, which makes it fearful in itself, on the
part of the offender or active subject of the sentenced crime.

QUESTION 174

How is the characteristic that punishment is costly explained?

It is costly, from multiple points of view, the penalty implies a very high social cost. Its cost
translates into the maintenance of a powerful apparatus of state force for its imposition, although we
think about the salaries earned by the public ministry, ministerial police, judges, and the staff of a
penitentiary, as well as maintenance, food , Inter alia; in the suffering it imposes on the sufferer and
their family, with the sacrifice of some of their property and sometimes the destruction of their life or
their own personality.

QUESTION 175

How do we explain the characteristic that grief is useful?

It is useful, since there is nothing more irrational than a useless punishment, understood as one
that does not admit in advance the possibility of serving the prisoner for something positive or good
because it falls on an incapable person or on someone who does not require it, as well as one that
It is imposed without the social benefit of the “prevention” of crime being achieved.

Punishment serves (this is its usefulness, its final effect) as a last resort to preserve the
fundamental goods and values of harmonious coexistence as such, but also to preserve the
fundamental values of the authority of the State and the legitimacy of the norm. legal-criminal.

QUESTION 176

How is the characteristic that the penalty is proportional explained?

f).- It is proportional, since the proportion between crime and criminal sanction is one of the guiding
principles of modern criminal law of our times. According to the principle of economy of punishment,
everything that goes beyond necessity is not only a superfluous evil but also produces a multitude
of inconveniences that elude the goals of justice. Disproportionate punishment is then neither
necessary nor useful, but, on the contrary, unnecessary and counterproductive; Therefore, today
any excessive and disproportionate punishment is prohibited.
 QUESTION 177

How does the doctrine define security measures?

For the writer Ignacio Villalobos, security measures “are those that, without using intimidation
and therefore without being definitive, seek the same goal of preventing future attacks by a subject
who has shown himself prone to incurring them.” ; Thus, while the fine and imprisonment are true
penalties, all the others mentioned...our Penal Code can be taken as simple security measures."

For the writer Emilio Octavio de Toledo y Ubieto, security measures “are the legal consequence
of the “typical injustice” carried out by an unimpeachable subject (involved in a cause of non-
imputability, that is, lack of capacity for guilt) or semi-imputable (subject with diminished or
incomplete capacity for culpability), or even by an attributable subject who in any case accredits a
qualified attitude of “criminal danger” in the future and who requires, in order to distort this, a
treatment uniquely appropriate to his personality.”

Finally, the writer Antonio Beristaín points out that security measures “are assistance means,
consistent with a typically illegal act, applied by the jurisdictional bodies in accordance with the law,
to dangerous people to achieve special prevention.”

Taking into account the previous ideas about security measures, we can define them as the legal
means or suitable legal instruments through which the State, in an individualized and singular
manner, sanctions criminals in order to prevent the commission of new crimes. or their recidivism in
the execution of punishable acts, without said sanction having an afflictive or retributive nature.

QUESTION 178

How do you explain security measures with the characteristic of legality?

They have the character of legality, since they are based on Constitutional bases such as
articles 14, 16 and 19 of our Magna Carta, and on secondary laws of a criminal procedural nature,
thus based on the power that the State has in punitive and preventive matters of crime.

QUESTION 179

How do you explain the security measures with the public feature?

They have the character of Public, because the State has the power and can describe them in
criminal law and then execute them through the competent jurisdictional body.

QUESTION 180

How do you explain security measures with the jurisdictional characteristic?

 They have a jurisdictional character, closely linked to the previous one, and because they are
imposed by a judicial authority duly founded and motivated in accordance with the law.

QUESTION 181

How do you explain the security measures with the very personal characteristic?

It is very personal in nature, considering that it can only be applied to the offending subject, and
not to another person.

QUESTION 182

How do you explain the security measures with the indeterminate characteristic?

They have the character of indeterminate, because they are not penalties but true treatments, as
a logical consequence, they cannot be fixed for a specific time, which is why it is insisted that they
are determined.

QUESTION 183

How do you explain the security measures with the treatment feature?

They have the character of treatments, because they are intended for the prevention of antisocial
behavior or the rehabilitation of the active subject of the crime.

QUESTION 184

What are the characteristics of security measures?

Those are the following:

1º They must be aimed at the reintegration of the offender.

2º The offender must reveal the non-social criminal danger.
3º Said dangerousness must be manifested by external criminal acts and not by mere suspicions of
conduct.
4º The security measures will not be more serious or lasting than the penalties, principle of
proportionality.
5º The principle of legality is applicable, that is, classified in the law and applied by Judges and
Courts.
6º Non-cumulative penalties and security measures.

QUESTION 185

What is the first distinction between security measures and punishment?

 In the security measure there is no moral reproach, however, in the penalty, on the contrary, it
carries with it a judgment of reproach, that is, it publicly and solemnly disqualifies the unlawful and
guilty conduct of the offender for having behaved in a contrary manner. to the legal-criminal norm.

QUESTION 186

What is the second distinction between security measures and punishment?

The penalty is a reaction of the Criminal Power of the State against a subject who committed a
crime; while the security measure originates and is projected to prevent future crimes, and does not
precisely correspond to a punishable act (crime).

QUESTION 187

What is the third distinction between security measures and punishment?

The penalty is imposed according to the seriousness of the crime committed and the damage or
injury to the legal property protected by the criminal legal norm; while the security measure pays
special attention to the dangerousness of the criminal.

QUESTION 188

What is the fourth distinction between security measures and punishment?

The penalty is determined in terms of its duration; while the security measure is indeterminate,
and remains based on the dangerousness of the offender.

QUESTION 189

What is the fifth distinction between security measures and punishment?

The penalty can only be imposed on attributable subjects, that is, on all those who know and
voluntarily want the result of their unlawful and guilty conduct; while the security measure can be
imposed on both those liable and those not liable.

And we cannot lose sight of a fact that identifies them both: that is their imposing and coercive
nature; The first manifests itself because it is imposed by a jurisdictional body taking into account
the interest of society; and the second, that its application must be obeyed even against the will of
the offender.

QUESTION 190

What is norm concurrence?

One is faced with the concurrence of mutually incompatible norms, when a subject or a case is
found, disciplined or regulated by two or more mutually incompatible ones.
 QUESTION 191

What is the crime competition?

Concurrence of crimes exists when one act constitutes two or more crimes or when several acts
of the same subject constitute as many crimes. In the first case it speaks of an ideal contest, while
in the second it produces a real contest.

QUESTION 192

When is there plurality of crimes?

There is a plurality of crimes in the so-called competition of crimes, when the same agent carries
out several criminal acts, of the same or different nature.

QUESTION 193

When is there an apparent conflict of criminal types?

There is an apparent concurrence of criminal types, when the illegal conduct that is a criminal
object is presented, at first glance, as subsumable in two or more criminal types that mutually
exclude each other, since its simultaneous application would violate the logical and evaluative
principles that regulate the system. and the interpretation of criminal law.

QUESTION 194

When is there an ideal contest?

There is an ideal bankruptcy when several violations of the criminal law occur with a single
action. There is also when a crime is committed as a means to execute another.

QUESTION 195

When is there a real contest?

There is a real concurrence of crimes when the same active subject of the crime carries out two
or more typical, unlawful and independently guilty behaviors that each constitute the integration of a
crime, regardless of its nature, if an irrevocable sentence has not been imposed with respect to any
of them. them and the action to pursue them has not caused a statute of limitations.

QUESTION 196

What does the doctrine on the competition of crimes highlight?

There is ideal competition in those cases in which a single behavior violates the same penal
provision several times (ideal homogeneous competition); or, when it violates several legal
provisions that are not mutually exclusive (ideal heterogeneous competition).
 There is an ideal competition when a single action or omission violates various legal provisions
that are not mutually exclusive. This rule refers only to heterogeneous competition. However, the
existence of homogeneous competition must be affirmed by virtue of an analogical application "in
bonam partem", since otherwise the alternative would be to regulate the case according to the rules
of real competition, which would be more burdensome for the offender. Furthermore, the expression
"various legal provisions" should not be misleading. If we take into account that every rule protects
an asset relevant to the law, it is clear that, ultimately, the injury of a precept always entails the
injury of an asset, and it is the latter that is relevant for the Legal System.

QUESTION 197

How to distinguish the ideal competition from the apparent competition of norms?

The ideal concurrence should not be confused with the apparent concurrence of norms, also
called by a sector of the doctrine, improper ideal concurrence and even apparent concurrence of
crimes. The apparent concurrence is defined as a hypothesis of unity of action, with unity of injury. It
happens that here the action "seems" to conform to various legal provisions and, as a result,
generates the impression of having produced a plurality of injuries to legally relevant property.
However, this appearance can be dispelled through the application of the principles of specialty,
consumption and subsidiarity.

QUESTION 198

Does the ideal homogeneous competition present problems in determining the sentence?

When it comes to the homogeneous ideal competition, the determination of the sentence does
not actually present a major problem. Here the sanction that is taken is that of the criminal law that
was violated several times, as if it had been violated only once. When establishing the specific
sentence, the judge can take into account the plurality of results produced by the action (bomb
case, which kills several) or the connection of means to end of one of the legal violations with
relationship to the other or the others.

QUESTION 199

What is accumulation?

It occurs when several crimes have been committed and they have not been punished. If any of
them had been punished, other figures called recidivism and habituality could occur.

QUESTION 200

What is recidivism and habituality?

Recidivism means that the active subject of the crime has the situation of committing a crime
over and over again, in certain and different circumstances. Habituality is a degree higher than
recidivism; the repeat offender incurs it by committing a crime again.
 QUESTION 201

What does the doctrine indicate regarding the distinction between authors and participants?

Both doctrinally and legally, a distinction is made between authors and participants, above all,
when more or two people are involved in carrying out a criminal offense of a unisubjective nature,
that is, the actions of each person are distinguished, especially for the purposes of punishability,
evaluating aspects subjective as it is, the prior agreement of wills as well as objectives, translating
into material acts that penetrate the core of the criminal type, however it is considered that the
subject matter goes beyond the type-typicality to move to a technique on attributability. , which
allows the formulation of a generic regulation on who or who should be attributed the conduct
hypothetically provided for in the Penal Code, and placing special emphasis on the causal link
between the conduct displayed and the result. We can classify the institution of criminal participation
in this as a genus, and in its species the authorship and that gives support to the theory of the
domain of the fact, objective-material theory, objective-formal theory that includes the direct, the
mediate, the co-authorship and those by own hand. While in participation as a species we find
induction or harassment and complicity.

QUESTION 202

What is the legal nature of the unitary concept of criminal perpetrator?

Built from the theory of the equivalence of conditions, this current rejects the possibility of
distinguishing between author and participant, since any participation, no matter how insignificant,
has the same causal value, as long as its suppression ideally prevents the production of the result,
since Any person who intervenes in a criminal act will be considered the perpetrator.

QUESTION 203

What is the extensive concept of criminal perpetrator?

Like the above, it finds its starting point in the theory of the equivalence of conditions and
postulates that the author, any individual who has contributed in some way to the production of a
criminal act, provided that his contribution is unavoidable for the realization of the event, but the
need to qualify the different degrees of responsibility based on a criterion of an emotional nature is
recognized in the face of the impossibility of carrying out objective-causal measurements.

What is the restrictive concept of author?

It is based on objective criteria, that is, the mere causal contribution is insufficient to estimate
that the taxpayer has the character of author; it is also necessary for him to carry out the integrative
conduct of the corresponding type, therefore, the contribution of one of the multiple conditions
necessary for the production of the result, is not synonymous with authorship, despite the crime
being assumed as one's own.
 QUESTION 205

What does the Fact Domain Theory consist of?

Here, the sphere of authorship includes not only the direct executor, the person who plans the
criminal event, those who intervene in it jointly, etc., concluding that the author qualifies as the
person who ultimately controls the development of the event. .

QUESTION 206

What is direct or material authorship?

It has been maintained as a characteristic of criminal conduct, whoever carries it out illegally
and culpably, therefore the perpetrator is the one defined in the type, he is the one who carries out
the main action or executive action. Who finally and by his own hand carries out the objective part of
the type, so he will always be the author. Article 13, section II of the Federal Penal Code, refers to
this type of author as: "those who carry out the crime themselves."

QUESTION 207

What is the intellectual authorship?

It is the one who devises the commission of the criminal conduct and organizes the course of the
event, and therefore exercises control over it, that is, he is understood as the planner of the crime.
The article of the aforementioned regulation in its section I refers to the intellectual authors as:
"those who agree or prepare its implementation."

QUESTION 208

What is the mediate authorship?

This type of authorship is characterized because the perpetrator of the crime does not carry out the
typical action himself, but rather through another person who acts as a mere instrument for carrying
out the typical behavior, and in this case a cause of guiltlessness is actualized (included
imputability), there is an absence of conduct or typicality or it is covered by some justification. Article
13, section IV of the Penal Code, refers to the direct perpetrator as the one who carries out the
crime "using another."

QUESTION 209

What is co-authorship?

It involves the concurrence of several individuals who, through the distribution of work, each
perform various functions that jointly seek to obtain the criminal goal. This approach allows for the
partial performance of the typical act by several subjects, and even allows for granting the status of
co-author to someone who makes a contribution that is considered indispensable for the
commission of the crime. Section III of the aforementioned article refers to the co-authors of the
crime as: "Those who carry out jointly."

QUESTION 210

What is criminal participation?

Participation consists of the intentional contribution that is made for the benefit of the intentional
injustice of another. As will be seen, it is not essential to acquire the quality of accomplice that one
collaborates in the commission of an unjustly guilty person, but only that the participant's
contribution favors the performance of another's typical and unlawful conduct.

QUESTION 211

What is the legal nature of criminal participation?

There are various theses that in the development of dogmatics have attempted to elucidate the
legal nature of participation. A sector of the doctrine took the theory of the equivalence of conditions
to its ultimate consequences, in order to extract the foundations that will support the existence of a
monistic concept of criminal intervention that by definition prevented the distinction between author
and participant.

QUESTION 212

What does the Theory of Autonomy indicate?

From a perspective diametrically opposite to the previous one, the thesis of independence was
proclaimed, according to which each of the acts carried out by the subjects participating in the
carrying out of the criminal event, are constitutive of autonomous crimes, a thesis that today is
absolutely discredited by scientific opinion and is obviously not adopted in article 13 of the Federal
Penal Code.

QUESTION 213

What does the Accessory Theory indicate?

Currently, doctrinal preferences are unanimously in favor of the notion that the contributions of
the participants are of an accessory nature, just an appendix to the unjust act carried out by the
authors and without whose existence, they lack significance. legal-criminal. Likewise, three degrees
of minimal, medium and maximum accessory are recognized.

QUESTION 214

What is induction or harassment?

 As the first form of participation as a species, it consists of giving birth in another to the idea of
committing a crime or of maliciously terminating another so that they carry out a malicious injustice.
When the passive object of the instigation was already determined to commit the crime, there is no
induction, although there could be an act of psychological pressure, due to the moral reinforcement
provided by people's verbal activity.

QUESTION 215

Are the instigator and the instigated criminals?

It should be noted that both subjects, instigator and instigated, are criminals and that the
inducement must necessarily fall on attributable individuals, since if not, there would be immediate
authorship. On the other hand, the inducement must refer to the performance of specific criminal
conduct. , without it being necessary for the instigator to refer to specific details arising from his
commission. Induction, by itself, is not worthy of repression given its accessory nature, since the
crime must occur or at least be attempted.

QUESTION 216

What else can be noted about this participation?

Likewise, it must be appreciated that between the moment in which the induction is carried out
and the execution of the unjust act, there is a reasonable period of immediacy so that it is evident
that the conduct of the active subject was determined by the activity of the instigator and rule out
that due to the passage of time it is the product of a spontaneous decision by the material author of
the event. Section V of the aforementioned article says: "those who maliciously determine another
to commit it", referring to the inducer or instigator.

QUESTION 217

What is primary complicity?

As another type of participation, it is defined as someone who intentionally collaborates or

assists the author of an intentional injustice. Complicity can be:
Primary Complicity.- Consists of the materially necessary contribution for the commission of the
intentional and illegal act, there being opinions to the contrary in the sense that in this case it should
be included in the scope of co-authorship, although from the ontological point of view, the fact
cannot be considered as one's own. In section VI of article 13, where it says. "Those who
intentionally provide help or assist another for their commission."

QUESTION 218

What is secondary complicity?

 It refers to the help provided to the author of an intentional injustice, but after its execution,
provided that there has been a prior agreement between the author and participant. Section VII of
the Federal Penal Code understands this figure by saying: "Those who assist the criminal after its
execution, in compliance with a promise prior to the crime." In the event that there is no prior
agreement, the case of concealment that typifies article 400 of the same ordinance will apply.

QUESTION 219

What is correspective complicity?

This form of participation is sustained when those who inflicted injuries are specifically ignored,
resulting in homicide, which is attributable to each of the aggressors, and each one must be
penalized by the same attenuated penalty established by law. Criminal responsibility cannot be co-
respective if there was an agreement of wills on the part of the accused to commit the crimes
charged. Here the case of multiple assets in the crimes of homicide and injuries is understood, but it
inevitably requires the lack of reordering, because the specific material causation is unknown.

QUESTION 220

What does criminal legislation say in this regard?

In section VIII of the aforementioned article, it covers this assumption, saying: "Those who,
without prior agreement, intervene with others in their commission, when the result that each one
produced cannot be specified." Doctrinally, there are opinions that since there is no prior agreement
for the production of a result, there is no participation, even when several assets are involved in the
production of one or more results.
For cases of complicity, as well as co-respective, in the last paragraph of article 13 of the
Federal Penal Code, and for the purposes of the application of the penalty, it refers to the various
64 bis where it provides that the penalty will be imposed up to three quarters of that corresponding
to the crime in question and, where appropriate, in accordance with the respective modality.

QUESTION 221

What does impute mean?

In the opinion of Carrancá and Trujillo, to impute is to put something on someone's account,
which cannot occur without that someone, and for criminal law only someone is someone who, due
to their psychological conditions, is subject to voluntariness. And he goes on to say that while
imputability is a psychological situation in the abstract, guilt is the concrete capacity for legal
imputation.

Ignacio Villalobos says that imputability must be accepted as a technicality that refers to the
subject's opportunity: ability to direct his actions within the legal order and that therefore makes guilt
possible.
 The Mexican legal dictionary defines imputability as the capacity, conditioned by maturity and
mental health, to understand the unlawful nature of one's own action or omission and to determine
oneself according to that understanding.

The thinkers of the Classical school believe that imputability is based on free will and moral
responsibility. Meanwhile, positivists replace this with social responsibility, which points to the
individual as responsible for the simple fact of living in society.

QUESTION 222

What is non-imputability?

Jiménez de Asúa maintains that the lack of development and health of the mind, as well as
temporary disorders of the mental faculties that deprive or disturb the subject of the ability to know
one's duty, are causes of non-imputability, this is in those causes in which If the act is typical and
unlawful, the agent is not in a position to be attributed the act he perpetrated.

QUESTION 223

What is diminished imputability?

The writer Raúl Carrancá calls it diminished imputability, they are intermediate zones, forms of
passage, bordering states, they have been called the intermediate states between reason and
madness, between consciousness and unconsciousness, between the minority and the majority of
legal capacity. because of age. Diminished or attenuated imputability points to these cases in the
classical school.

QUESTION 224

What is guiltlessness?

Guiltlessness is the negative element of guilt. This will occur when certain causes or
circumstances foreign to the ability to know and want occur, in the execution of an act carried out by
an attributable subject.

QUESTION 225

When does guiltlessness operate?

Guiltlessness operates when one of the essential elements of guilt is missing, whether
knowledge or will. Nor will conduct be guilty if any of the other elements of the crime or the
subject's imputability are missing. Because if the crime integrates a whole, it will only exist through
the union of all the constituent elements of its essence.

QUESTION 226

What is the basis of guiltlessness?

 The basis of blamelessness is error, of which there are different types. When guiltlessness
occurs, the subject cannot be punished, since for the crime to exist, the presence of its four
elements is necessary; first, the conduct is carried out; second, there is typicality, that the conduct is
adapted to a criminal type; third, the act is illegal and finally it is guilty.

QUESTION 227

What is imputability?

Criminal doctrine is abundant regarding the concept of imputability, which is why the writer
Francisco Muñoz Conde states that “guilt is based on the author of the criminal offense, of the type
of unjust, typical and illegal act, having the psychic faculties and minimum physical abilities required
to be motivated in their actions by regulatory mandates. The set of these minimum faculties,
required to consider a subject guilty for having done something typical and unlawful, is called
imputability or, more modernly, capacity for guilt . maturity and mental health that the law demands,
they are capable of understanding, wanting and responding to the State and society for their actions
under the criminal-legal system.”

QUESTION 228

How else can imputability be understood?

Imputability is the ability to understand and want in the field of criminal law, it implies mental
health, psychic ability to act in the criminal field, precisely when committing a crime. On the other
hand, the subject must first be imputable to then be guilty; Thus, there can be no guilt if one is not
previously attributable. It is one of the pillars of the theory of crime, in which it is accepted that the
subject has a margin of choice, of decision, to opt for respect for the Law, or to violating it and in
that possibility lies Imputability. This concept can be handled in the same way, that Imputability is
the set of psychic conditions that the Law requires to place an action in charge of the agent. These
conditions are summarized in the concept of freedom of imputability. equals freedom.

QUESTION 229

What limits must the attributable subject maintain?

Two limits are assigned to imputability: the physical, or age limit, which, for example, precisely
article 3 of the current Penal Code for the State of Mexico establishes in the following terms: “This
code will apply to nationals or foreigners who have reached 18 years of age. Regarding the latter,
what is agreed in the treaties concluded by the federation with other nations and what is provided in
the right of reciprocity will be considered. Minors under this age are subject to the relevant
legislation.” And the second, which is the psychic limit, which means and refers to the abilities to
understand and behave. And consequently, when a minor has committed a crime, the relevant
legislation on the matter will be applied, which is the current Law on Social Prevention and
Treatment of Minors.

QUESTION 230
 Is there another way to understand these parameters?

It can be said that in Imputability, based on the doctrine and the Laws, two minimum limits are
required for its existence.

A physical limit is a minimum age at which the subject, upon reaching a certain development,
achieves sufficient psychological development to be considered attributable:
A psychic limit, that is, the capacity to understand, considering it on an intellective or
understanding level, and the capacity to "want" on a level of will.

In this way, in punitive regulations it is usual to find that it is not imputable, if a certain age is
reached (15,16,18, or more as provided for by each code), at the time that the typical behavior is
carried out, and if in addition satisfies the psychic limit required by Law 33 itself

QUESTION 231

How does a criminal become a criminal subject legally?

Taking into account what was previously transcribed, we then have that for imputable adult
subjects, age of majority (eighteen years or older) and mental capacity are two parameters through
which a person can become a subject of rights and duties, that is, acquire the legal capacity that will
make him a subject of relationships regulated by criminal law.

QUESTION 232

Is imputability a specific quality of the active subject of the crime?

Yeah. In this same order of ideas, we consider that imputability is a personal quality of the active
subject, since it arises upon reaching that certain age, which makes him legally come into
possession of a psychic capacity that attributes to him the possibility of arguing, judging, select and
decide certain criminal illicit will. This quality must be present in the active subject of the punishable
act, at the time of committing it, so that the criminal type indicates the corresponding sanction as a
result of its typical and unlawful conduct.

QUESTION 233

In imputability, what does the element of "capacity to want and understand?"

Furthermore, writers make mention in the concept of imputability of the “capacity to want and
understand,” which the active subject must have at the time of committing the crime. These
capacities are developed in the psychic sphere of the active subject and are reaffirmed in the area
of consciousness and will.

These two capacities of imputability can be explained by the fact that both wanting and
understanding necessarily come together and are required to consider the active subject of the
punishable act attributable. The ability to understand goes beyond the pure and simple
understanding of the action, there is normally also the ability to evaluate the act itself; its moral and
legal consequences, its contradictions to ethical, social and legal principles, and to conduct oneself
in accordance with that understanding. The capacity to want is the ability to freely direct one's own
conduct, basing it on the most reasonable reasons. Likewise, it also consists of the active subject
selecting between one or several actions to commit the proposed criminal offense, which is
influenced for certain reasons of our own or those of others.

QUESTION 234

What is non-imputability?

Non-imputability represents the negative aspect of imputability, that is, "it implies, consequently, the
absence of said capacity and therefore the inability to know the illegality of the act or to
spontaneously determine itself in accordance with that representation." That is, if we interpret
imputability acontra sensu, we understand that a person who is not in the capacity to know and
understand that he is acting unlawfully or, being able to understand it, is not in a position to act
differently; Therefore, for non-imputability to operate legally, the will of the offending subject must be
completely annulled, suppressing his conscience and thereby preventing him from evaluating his
behavior to leave them reduced to a mere product of his unconscious impulses, finally depriving him
of the normal exercise of his mental faculties.

QUESTION 235

What are the causes of non-imputability?

Specifically, it can be said that the causes of non-imputability would be those that mark the
cases in which the subject who has carried out a typical and unlawful conduct is not attributable
because he does not meet the psychological conditions provided for in the norm, that is, mental
disorder, delayed intellectual development. , serious fear and minority; in addition to a range of
psychological illnesses suffered by people who have committed crimes, whether intentional or
culpable.

QUESTION 236

What measures does the court take in the case of those not liable?

In the case of those not liable to criminal charges, the judge will order the treatment measure
applicable in confinement or release, following the corresponding procedure. Unimportable persons
may be handed over by the judicial or executing authority, if applicable, to those who are legally
responsible for taking charge of them, provided that they are obliged to take appropriate measures
for their treatment and surveillance, guaranteeing, by any means and to the satisfaction of the
mentioned authorities the fulfillment of the obligations contracted

QUESTION 237

What are the biological-psychological and legal assumptions of non-imputability?

It is the basic rule that regulates imputability and in our legal system a mixed system has been
adopted:
a) biological-psychological assumptions: insufficiency of faculties, morbid alterations thereof or state
of unconsciousness.
b) legal assumptions: impediment for the author at the time of the fact to understand his criminality
or the direction of his actions.

QUESTION 238

What are the bio-psychological assumptions of non-imputability?

Mental Maturity.- Within this assumption, we find the case of minors, who cannot be punished
under the same conditions as adults, but are passive subjects of educational and preventive
measures. Two strong ideas stand out by which the proposed idea is supported: a) before a certain
age, imputability does not occur (prepubescent minors); b) when the minor grows and incorporates
behavioral patterns, he could be subject to accusation in accordance with the classic thesis, but he
is also included within this category for reasons of criminal policy, given that educational treatment
is considered better than pure punishment. (adult minors).

Mental Health.- In this section, it is possible to include morbid alterations of the faculties and the
letter of the article refers to a term that is not entirely clear as to its limits, which is that of alienation .
To this must inevitably be added a series of mental pictures that are not objectified, but that
nevertheless produce a functional disturbance of the psychic sphere.

Consciousness.- When we refer to consciousness, we are talking about lucid consciousness,

which consists of the clear or clear knowledge of the internal and external events of our psychic life,
by virtue of which we perceive correctly, orient ourselves in time and space, responding
appropriately. to environmental stimuli and we evoke them chronologically.
The impairment of conscience operates as an exemption from criminal responsibility when it is
accidental, because the subject reaches this state without intention or guilt.

QUESTION 239

How are the causes of non-imputability distinguished?

Those causes are:

a) physiological causes: such as sleep, hypnosis, post-hypnotic command and affective states in
their deepest states; total and non-pathological intoxication by alcohol or drugs; the state of
drowsiness where the subject is between asleep and awake.
b) pathological causes: pathological drunkenness, provided that it is total and involuntary and is not
an alcoholic psychosis with deterioration of brain functions, since in that case it would be a morbid
alteration of the faculties, nor will it be an exclusive alcoholic coma. Of action; Another example of
the cause of unconsciousness will be pathological drug intoxication, clearly differentiating it from the
withdrawal syndrome that belongs to the field of morbid alterations; and finally, twilight states with a
hysterical, epileptic or schizophrenic basis should be included here.
It usually happens that when these intense disorders of consciousness occur, the subject's ability
to understand the criminality of the act is not impeded, although his or her faculties to direct his or
her behavior are affected; In these cases the agent acts motivated by uncontrollable desires
towards the crime that determine his imputability.
 QUESTION 240

What are those legal budgets?

Those are:

a) impossibility of understanding the criminality of the act: which does not have to be total, since if
the norm cannot be received by its recipient due to reasons of non-imputability, there will be no
possibility of being motivated by the norm, therefore, although said possibility be minimal, it must
exist in order to accommodate the attributability of the unjust that guilt requires.
b) impossibility of directing actions: which generates a deficient formation of the will in accordance
with the understanding of the criminality of the act.

QUESTION 241

What is actio liberae in causa?

Latin phrase used in criminal law to refer to the criminal act committed by the subject in a
situation of non-imputability, but the subject himself having caused such a situation, either actively,
or because he did not do what he should have done to prevent it from occurring, or because he
freely He wanted to commit the crime. Thus, starting from the assumption of voluntary drunkenness
as an illicit action, the solution derived from the principle versari in re illicita is applied to such a
case, that is, that whoever voluntarily places himself in a situation of non-imputability is responsible
for what he does in that state. title of fraud .

But considering the solution of -versari in re illicit- as the acceptance of objective responsibility,
unacceptable in modern criminal systems, it was decided to make a distinction between the subject
who was preordainedly placed in a situation of non-imputability to commit the illegal act, and that
other person who, being in such a state of unconsciousness, commits a crime through his or her
fault. The coherent formulation of the principle of actio libera in causa not only implies returning the
question of imputability to the moment in which the subject was placed in a situation of guilt, but
also transferring the verification of correct guilt to that same moment.

It is also a theory, accepted by the Spanish Penal Code, according to which the exemption from
criminal liability will be excluded when a temporary mental disturbance has been intentionally or
recklessly caused by the subject to commit the act specifically carried out, or when it had been
foreseen. or should foresee its commission.

QUESTION 242

What is Psychiatry in the case of those not responsible?

Psychiatry is the branch of Medical Science that deals with the study of mental illnesses.

QUESTION 243

What is a mental illness in the case of those who cannot be held accountable?
 Mental illness is one that is capable of altering man in his coexistence with others and in the
construction of his world. There are various theories to try to explain what causes mental illness,
among them we find psychogenetic theories of environmental factors, the psychogenetic theory of
the pathogenic unconscious, mechanistic psychogenetic theories and dynamic organogenetic
theories.

There is no clear and concise definition of mental illness that encompasses its multiple varieties
and characteristics; Jaspers believes that these are psychologically specific to man; López Ibor
defines it as: The human being, due to the richness and uniqueness of his position in the world, is
why he is capable of becoming ill in that strange and personal way that is mental illness.

QUESTION 244

What are the psychiatric syndromes in the case of those not responsible?

The Major Psychiatric Syndromes are: 1°. Psychosis. 2°. Neurosis. 3°. Personality disorders. 4°.
Sexual Deviations and Disorders. 5°. Mental retardation.

QUESTION 245

What is psychosis in the case of the unimpeachable?

Psychosis is a generally severe mental disorder that disorganizes the personality,

psychologically incapacitates the subject and disconnects them from the real world by taking their
own pathological mental productions (hallucinations, delusional ideas, etc.) as true. Another
distinctive feature of the psychotic patient is that he lacks awareness of mental illness or insight,
that is, he does not consider himself sick.

And it is classified as: 1st. Psychosis of unknown somatic basis. 2°. Psychosis with a known
somatic basis.

QUESTION 246

What is neurosis in the case of the unimpeachable?

Neurosis is a disorder caused by psychological "traumas." According to the psychodynamic

theoretical model, one of the many that seeks to explain the origin of mental disorders, neuroses
arise as a consequence of intrapsychic conflicts that, despite being repressed because they are
unacceptable and painful for the subject, generate anguish, an extremely painful and that ends up
being unbearable. Anxiety thus becomes "the common dynamic source of neuroses." However, in
anxiety neurosis, the "basic subform" of neuroses, there is no interposition of any defense
mechanism, the anxiety expressing itself freely as floating anxiety.

Neuroses are classified as: 1st. Anxiety neurosis. 2°. Hysterical neurosis (conversive and
dissociative). 3°. Phobic neurosis. 4°. Obsessive-compulsive neurosis. 5°. Depressive neurosis. 6°.
Neurasthenia. 7°. Hypochondria.
 QUESTION 247

What are personality disorders in the case of the unimpeachable?

The tenth revision of the WHO International Classification of Diseases defines personality disorders
as serious alterations in the character makeup and behavioral tendencies of the person, which do
not come directly from diseases, injuries or other traumas to the brain. nor other psychiatric
disorders. They usually involve several areas of the personality and are almost always
accompanied by considerable personal suffering (anxiety and depression and disorganization of
social life. It generally manifests itself from childhood or adolescence, continuing throughout adult
life.

QUESTION 248

What are sexual disorders in the case of those not responsible?

Sexual disorders are registered by the Tenth Revision of the International Classification of
Diseases (ICD-10), which was in force since 1993 in two separate categories: on the one hand,
dysfunctions are studied within the group of disorders called physiological dysfunctions associated
with factors mental or behavioral disorders and, on the other hand, paraphilias and sexual identity
disorders, within personality disorders.

QUESTION 249

What are mental disorders?

The third edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-III) of the
American Psychiatric Association, as well as the Revision of this classification (DSM-III-R), group
sexual disorders within the same category , called sexual disorders, which in turn encompasses four
orders of alterations: sexual identity disorders, paraphilias, sexual dysfunctions and egodystonic
homosexuality.

There was a time, during the period of greatest rise and expansion of psychometrics, when mental
retardation was defined based on the results obtained in intelligence tests. Thus, a subject who
achieved a score below average on an intelligence test was classified as mentally retarded, without
taking into consideration his or her other mental characteristics. Since intelligence tests are not
capable of exploring and evaluating other areas of psychological functioning, it was the case that
many children diagnosed with mental retardation could function as well as a normal child outside of
the classroom. As a result of this observation, social adaptation was added to the classic intellectual
criterion, so that the definition was more in line with the facts.

QUESTION 250

What is the Medical Legal importance of Forensic Psychiatry in Civil and Criminal Law?
 Legal Medical Importance of Forensic Psychiatry: It is manifested in Civil Law and Criminal Law;
For example, in cases of Civil Interdiction, the determination of the diagnosis of one of the
psychiatric syndromes that have been written and, as far as possible, determining the degree that
incapacitates him to deprive him of consciousness of his actions, or could have been deprived of it.
previously, and, consequently, when a criminal act could have been committed. That's as far as the
role of the forensic psychiatrist goes. Reference to the term non-imputability should not be made in
psychiatric expertise.

QUESTION 251

What are the lack of punishability objectives?

The objective conditions of punishment are evaluative elements and more commonly, modalities
of the type, if not presented they would constitute atypical forms, preventing the typicality of the illicit
conduct.

The place occupied by the absence of objective conditions of punishment within the theory of the
crime will depend on the criterion taken, since some authors consider that the absence of said
conditions will be the negative aspect of an element of the crime, considering that these They are
not elements of the crime.

Master Porte Petit says: “That when there is a hypothesis of absence of objective conditions of
punishability, a conduct or fact, appropriateness to the type, illegality, imputability and guilt, but not
punishability as long as the objective condition of punishability is not met, occurs. which confirms
that this is an element but a consequence of the crime.

QUESTION 252

What are acquittal excuses?

Acquittal excuses are considered a negative aspect of punishment.

Absolute excuses are those circumstances that prevent a typical, illegal act, attributable to a
guilty subject, from being punished for reasons of public utility.

For Kohler, these are circumstances in which, despite the illegality persisting, the possibility of
imposing a sentence on the perpetrator is excluded from the first moment.

In conclusion, acquittal excuses are those circumstances specifically indicated in the law and for
which the subject is not punished.

QUESTION 253

What are the objective conditions of punishment?

The objective conditions of punishment are those requirements occasionally established by the
legislator so that the penalty is applicable.
 For Castellanos Tena, the objective conditions of punishability are not essential elements of the
crime and are frequently confused with procedural requirements.

For Liszt Schmidt, external circumstances have nothing to do with the criminal action, but their
presence conditions the application of the sanction.

There are several differences between the objective conditions of punishment and the
constituent elements of the crime:

The constitutive elements integrate the fact vivified by the psychological element: the conditions of
punishment presuppose it.

The constituent elements refer to the precept against which they are made; The punishable
conditions refer to the sanction whose application they suspend. The constituent elements are
essential and essential for every crime; The punishable conditions exist only exceptionally.

QUESTION 254

What is punishment?

Punishment is the deserving of a penalty as a consequence of the conduct of a subject having

been framed in a criminal period.

Punishment is a secondary element of the crime, which consists of the merit of a penalty,
depending on or reason for the commission of a crime. These penalties are indicated in our Social
Defense code.

Guillermo Sauer says that punishability is the set of normative assumptions of punishment, for
the law and the sentence in accordance with the requirements of the ideas of law. And Sebastián
Soler maintains that punishability is not an essential element of the crime and considers it as a
consequence of it.

QUESTION 255

What is the attempt?

a. There is an attempt when the subject begins the execution of the crime directly by
external events, practicing all or part of the acts that objectively should produce the result, and yet
this does not occur due to causes independent of the will of the author.

QUESTION 256

What is inter criminis?

The iter criminis is the path taken by the crime that goes from its ideation in the agent's mind to
its execution. This path or life of crime has two phases: an internal and subjective one; and, another
external and objective phase, in which its execution occurs.
 QUESTION 257

What are the phases of iter criminis in its process?

Crime does not appear suddenly, it obeys a process, what the classics called, the "path of crime"
or iter criminis.
This process has two phases:
1. INTERNAL PHASE. CONCEPTION, DELIBERATION, RESOLUTION, WHICH ARE VOLUNTARY INTERNAL ACTS.
2. INTERMEDIATE PHASE THAT INCLUDES THE MANIFESTED RESOLUTION (CONSPIRACY, THREATS,
INSTIGATION). THE PUTATIVE CRIME AND THE APOLOGY FOR THE CRIME WOULD BELONG TO THIS
PHASE.

3. EXTERNAL PHASE. WHICH IS COMPOSED OF PREPARATORY ACTS AND ACTS OF EXECUTION (HERE
BELONG THE ATTEMPT, THE FRUSTRATED CRIME, THE CONSUMMATED CRIME, THE EXHAUSTED CRIME,
AND THE IMPOSSIBLE CRIME)

QUESTION 258

What is the classification of the criminal type for their conduct?

BY CONDUCT there are actions (simple omission) and omission (commission by omission)
FOR THE DAMAGE injury or damage (actual) and danger (alleged)
FOR THE formal RESULT, action or mere conduct and material or result FOR ITS DURATION
instantaneous, instantaneous with permanent effects, continued and permanent
BY THE SUBJECT common, federal, military, international political
BY THE NUMBER OF SUBJECTS unisubjective and plurisubjective
BY THE NUMBER OF unisubsistent and multisubsistent ACTS
DUE TO ITS SIMPLE AND COMPLEX STRUCTURE.
BY ITS PROCEEDIBILITY OR BY PURSUITABILITY of office and complaint
FOR ITS REPROCHABILITY, intentional or intentional, negligent, reckless or unintentional.
FOR THE PROTECTED LEGAL GOOD (LEGAL), against life: against property: against the nation:
against sexual freedom, etc.
BY ITS METHODICAL ORGANIZATION basic or fundamental: special; complemented
DUE TO ITS normal and abnormal composition
BY ITS ANATOMY autonomous or independent subordinate
DUE TO ITS CASUISTICAL FORMULATION AND COMPREHENSIVE
BY THE DESCRIPTION OF ITS descriptive ELEMENTS; normative and subjective.

QUESTION 259

What did the internal phase of the iter criminis consist of?
 Set of voluntary acts of the internal jurisdiction of the person that do not fall within the sanctioning
field of Criminal Law. Conception, Deliberation and Resolution cannot be sanctioned because they
are within the internal forum of the individual.
Conception or ideation is the moment in which the idea or purpose of committing a crime arises
in the spirit and mind of the subject. Deliberation is the moment of study and appreciation of the
motives for committing the crime. The Resolution or determination is the moment of decision to
commit the crime based on one of the reasons from the previous phase. The execution of the
criminal offense is resolved internally.

QUESTION 260

What does the intermediate phase of iter criminis consist of?

It includes intermediate acts that do not cause objective harm and that are expressed in the
determination to commit a crime, that is, in the expressed resolution. The manifested resolve is
expressed in the form of conspiracy, instigation and threats. These, although they do not cause
damage, can cause public disturbances. They are punished as "special crimes."
Conspiracy is the agreement of three or more people to commit the crimes of sedition or
rebellion. Conspiracy is punishable as a special crime.
Instigation is the act of determining another person to commit a punishable act, for which the
perpetrator will be considered fully responsible. An instigator is someone who intentionally
determines another to commit a crime." Proposition is simply inviting, provocation is proposing but
without convincing.
"Threats are verbal, written or weaponized expressions with the purpose of intimidating or
alarming." It is punishable as a special crime, not because of the possible damage but because of
the dangerousness of the agent.
The putative crime and the apology for the crime also belong to this phase. The putative crime is
an act in which the perpetrator believes, by mistake, that he is committing a punishable and criminal
act. One believes that adultery is a crime, falls into this behavior and considers himself the author of
a crime. It is not sanctioned because the Principle of Legality is followed. The apology of crime is
public support for the commission of a crime or for a convicted person.

QUESTION 261

What does the external phase of iter criminis consist of?

It is in this phase that the crime comes to life, and is composed of the Preparatory Acts and the
Execution Acts.

QUESTION 262

What are the preparatory acts in iter criminis?

 They are acts to provide adequate instruments and means to commit a crime. The classics say
that they are not punishable because they do not always reflect the author's intention. Because a
person can buy a weapon for various uses. The positivists say that they are punishable if these acts
are carried out by people who have already committed crimes. By exception, however, it does
sanction, as long as the obtaining of means and instruments unequivocally reflects the commission
of a crime, but it sanctions them as a special crime, not as a preparatory act.

QUESTION 263

What are acts of execution in iter criminis?

They are external acts that fall into the punishable criminal category. These acts include the
attempt, the frustrated crime, the impossible crime, the consummated crime and the exhausted
crime.

QUESTION 264

What are the elements of the attempt?

As we know, the attempt is the beginning of the execution of a crime, but it has been interrupted for
reasons beyond the control of the agent. Its elements are:
1. Principle of execution, material act that directly tends to the perpetration of the criminal offense.
2. Intention to commit the crime. It must be confessed by the author or proven by the protagonist of
the criminal event.
3. Interruption of execution. By:
a).- Withdrawal of the agent himself. There is no sanction.
b).- Cause beyond the control of the agent. If someone intends to shoot, but is not allowed by
another, they are punished for the crime that was committed.

QUESTION 265

What is frustrated crime?

The agent carries out all the acts of execution, but the crime does not appear in its material
consequences. If the active subject gives someone poison, but then intervenes, it is attempted
murder. If you drink it and then give it an antidote, the crime is foiled.

QUESTION 266

What is the impossible crime?

 They are those actions that, due to a lack of means, an objective, or inadequate use of the
means, the crime is not consummated. Example, giving sugar believing it was poison. Trying to
abort a non-pregnant woman. The first is inappropriate use of the substance and the second is lack
of material object on which the criminal action falls. It is not punishable, the judge must apply a
security measure (an example of this is confinement in a psychological center).

QUESTION 267

What is the consummated crime?

The active subject carries out the typically illegal action that he planned to execute. They are
described in the special part of every Penal Code.

QUESTION 268

What is exhausted crime?

It is the last phase of the "iter criminis" until the planned and the purpose is achieved. It occurs after
the consummated crime.

QUESTION 269

What are the elements of punishable attempt?

For a punishable attempt to exist, a series of elements must be present: fraud, a principle of
execution, and that the result does not occur due to causes beyond the control of the subject.

QUESTION 270

How is fraud explained in punishable attempts?

The degrees of execution of the crime refer exclusively to intentional crimes, since only in them
does the subject pursue the production of the result. The attempted crime may occur even when the
subject acts simply with possible intent.

Where attempt will not fit is in reckless crimes; can be given only reckless actions without result,
that is, reckless crimes without full This type of behavior is generally unpunished unless it is
committed caught in a type of crime of concrete or abstract danger.

QUESTION 271

How is the principle of execution explained in punishable attempts?

The subject must have started the execution. The problem of the distinction between executive
acts and preparatory acts arises. To distinguish one from the other, different theories have been
formulated.

QUESTION 272

How does the theory of univocality explain the above principle?

a. Theory of univocality: formulated in Italy by Carrara. According to this author, the

preparatory acts are equivocal, they may be directed towards the commission of a crime or the
performance of lawful conduct, while the executive acts are univocal, it can be deduced from them
that they are directed towards the commission of a crime. The writer Rogelio Montes objected that it
is inadmissible that the nature of the acts depends on whether or not it can be proven that they are
directed. two to the commission of a crime. Furthermore, it is extremely imprecise because if it is
required, like Carrara, that the act itself, regardless of the context If it is deduced that it is directed at
the commission of a crime, there is a drastic restriction of the scope of executive acts, while if it is
ne taking into account the context in which it was carried out, clearly preparatory acts can be
univocal and therefore executive. The criterion of univocality, although it was very successful in
Spain, today has been practically abandoned.

QUESTION 273

How does the Theory of Natural Unity explain it?

b.
c. Theory of natural unity: formulated by Frank in Germany. According to him, executive acts
are also those that are so closely united with those described in the typical action that for a natural
contemplation, of the layman, they appear forming a unity.

QUESTION 274

How does the Theory of the beginning of concrete danger of the legal good explain it?

d. Theory of the beginning of the concrete danger of the legal good: this is also a material
theory. Formulated in Germany by Mayer and in Spain by Ferrer Sama. In the opinion of these
authors, an act is executive when it already puts the legal right in concrete danger; The preparatory
acts, on the contrary, do not yet put it into question. ligro. The objection to this approach is that it is
debatable that in the preparatory acts there is not already a beginning of the concrete danger for the
legal good.

QUESTION 276

How do your predecessors explain it?

e. Theory of the beginning of the attack on the legal good. An act will be executive when it
marks the beginning of the attack on the legal asset.
f.
g. According to Welzel, the act is already executive when the subject immediately prepares
to carry out the typical action. It is unsatisfactory because at that time we cannot yet say that the
execution has begun.
To find the solution to this problem we must start from the criterion of action tion typical of Beling,
closely linked to the principle of legality. The problem of the delimitation of preparatory and
executive acts consists of the delimitation of the typical action. Executive acts will be the acts
included in the core of the type, in the verb with which the typical behavior is designated and, where
appropriate, in the peripheral zone. To specify the delimitation and avoid excessive res triction of
the scope of the attempt, it will be necessary to resort to the material criteria of Frank's natural unity
and the beginning of the attack on the protected legal asset.
Problems posed by the ne necessity of a principle of execution in the attempt in relation to certain
types of crimes:

QUESTION 277

What happens in crimes of simple activity?

h. Crimes of simple activity: the dominant opinion defends that since the principle of
execution is an element of the attempt, this does not fit into crimes of simple activity, which consist
precisely in punishing the crime. ra performance of an action.
i.
When the execution of the crime begins, it is consummated. Thus: in crimes of simple activity
there is no room for attempt. Now, the doubt arises in the so-called "crimes of expression" (insults,
threats and false testimony), if it is considered that it is not enough to formulate the expression but
that it is necessary that it has reached its addressee and he understand it, yes the attempt would be
possible, what really happens is that it is du They are crimes of simple activity.

QUESTION 278

What happens in crimes of omission?

b. Crimes of omission: two types are distinguished, pure or crimes of omission and improper
crimes of omission or commission by omission. in the delis pure cases of omission (e.g. crime of
omission of the duty to help) no result is imputed but rather the subject is punished This is due to
the mere failure to provide assistance, which is why the dominant opinion considers that an attempt
is not possible in this type of criminal infractions.
c.
d. In the case of improper crimes of omission, as crimes of result that they are, there is the
possibility that they may be carried out on an attempted level.

QUESTION 279

What is the last requirement of punishable attempt?

e. The last requirement of the attempt: that the result does not occur due to causes beyond
the will of the subject. In order to punish a person for an attempt, it is necessary that he or she has
not voluntarily desisted.

QUESTION 280

How is the inappropriate attempt explained?

f. The inappropriate attempt is one in which beforehand, ex ante, in a judgment of objective
foreseeability, the production of the criminal result appears to be impossible. The problem lies in
whether she should be punished or not. The decision taken in this regard has an impact on the
conception of injustice that inspires the Penal Code.

QUESTION 281

How many kinds of impossible attempts are there legally?

Three kinds of impossible attempts can be distinguished:

Due to inadequacy of the means: recognized since the 19th century

g. eg: trying to perform an abortion using a harmless, ineffective substance.
Due to nonexistence of the material object of the crime: also known since the last century.

h. eg: trying to steal a wallet that does not really exist despite the author believing otherwise;
shooting a person who is already dead believing that he is still alive; attempting to perform an
abortion on a non-pregnant woman thinking that she is pregnant.
Due to unsuitability of the active subject of the crime: the existence of this figure was already
raised in the 20th century. According to some authors such as Cerezo, it is an impossible attempt,
for others, such as Welzel, it is a putative or imaginary crime.

i. For example, this is the case of someone who, believing himself to be an official without
being one, wants to commit one of the crimes committed by public officials in the exercise of their
position, such as a crime of bribery.

QUESTION 282

What theories explain the impunity or punishment of inappropriate attempts?

j. As for objective theories, there is the theory of abstract danger.

In this theory, a distinction is made between the absolutely inappropriate attempt, which would
be unpunished, and the relatively inappropriate attempt, which would be punishable. It is
distinguished in between both types of attempt from an ex post perspective, placing the interest
prete at the moment in which the event has already occurred and taking into account the data that is
known at that moment. Only reference is made to the unsuitability of the means and the object:

Means: for the defenders of this approach there are absolute means completely unsuitable and
relatively unsuitable or insufficient tes. The attempt is absolutely inappropriate when in no case can
the environment to produce the result and relatively unsuitable when it cannot produce it. cir in the
specific case but yes in others . The objection is made that there are few means that are absolutely
suitable.

Object: cases of non-existence of the object are distinguished, which are considered an
absolutely inappropriate attempt and therefore unpunished; and the mere lack oca tional of the
presence of the object, the latter being relatively unsuitable and, therefore, punishable.

QUESTION 283

What does the theory of concrete danger consist of?

Theory of concrete danger: it is the modern objective theory. Part of an ex ante contemplation.
The dangerous attempt is suitable, that is, one in which in a judgment of objective foreseeability the
production of the criminal result appears ex ante as possible; and unsuitable is the non-dangerous
attempt, in which in a judgment of objective foreseeability it appears impossible for the result to
occur. For its defenders, the inappropriate attempt should go unpunished. The modern objective
theory of attempt has found acceptance in the Italian Penal Code.

QUESTION 284

How do subjective theories explain it?

According to its defenders, the inappropriate attempt must be punished always be carried out,
because every attempt - ex post - is inappropriate and a resolution of illegality revealed by external
acts, of an executive nature, already represents a serious danger to the legal system. Subjective
theories are very numerous and varied, agreeing on the fundamental points. For Buri, if the result
had not occurred, it is because some of the conditions necessary for its production were lacking and
the attempt is, therefore, always unsuitable. Subjective theories of attempt have found support in
the German Penal Code and the Swiss Penal Code.

The difficulty encountered by subjective theories properly speaking is that, according to them, it
would be necessary to punish, in principle, also the unrealistic attempt or the attempt by
superstitious means, in which the criminal plan is totally disconnected. of empirically verifiable
reality, invading the realm of the natural or superstitious.

To exclude the punishability of superstitious or unreal attempts, the theory of impression is

formulated in Germany, which is a mixed, objective-subjective theory. The impression theory is
based on the subjective theory of attempt and considers that any inappropriate attempt should be
punishable; but it then introduces a corrective of an objective nature: it should not be punished in
cases where, due to the disconnection in between the criminal plan and reality, the subject's
behavior does not cause alarm in the society not only does it awaken compassion.

The fundamental defect of this theory lies in its imprecision; The criterion of "social alarm" does
not allow us to safely delimit the impossible attempt and the unrealistic attempt. On the other hand,
it is an element unrelated to the specific unfairness of the conduct carried out.
 Now it is not necessary to resort to the theory of impression to avoid the punishment of the
unreal attempt if we start from a theory. subjective opinion. Defending a pure subjective theory we
can maintain the impunity of the unreal attempt: in the impossible or initial attempt where there is no
disvalue of the result, but in the cases of having unreal tativa the devaluation of the action does not
occur either. And if it occurs, it is of such a minor nature that it would not be worth it.

QUESTION 285

What is withdrawal?

There is withdrawal of the attempt when the agent ceases the acts of execution voluntarily,
regardless of the reasons for the withdrawal, that is, this figure occurs in unfinished attempts.

QUESTION 286

What is the legal nature of withdrawal and its characteristics?

The legal nature of withdrawal is that of a personal cause for exclusion from the penalty, so the
author's withdrawal does not benefit the participants. Desistence is not voluntary when the subject
believes that consummation is not possible, or when the continuation of the execution could bring
such serious consequences to the subject that they could hardly have accepted them. The distinction
between completed and unfinished attempts is relevant for the purposes of determining whether in a
specific case there has been withdrawal.

QUESTION 287

What is the basis for the non-punishment of the abandoned attempt?

A series of theories have been formulated to explain the impunity of the action aimed at carrying
out a crime that was voluntarily abandoned.
The oldest of the foundations given is the "silver bridge" theory. This indicates that desistance
should be encouraged, offering the subject impunity if he desists from his attempt and prevents the
production of the result. This theory has been criticized, indicating that the promise of non-penalty is
generally not the reason why the subject desists, resulting in many times not even knowing said
promise.

QUESTION 288

What are those theories that explain it?

The theory of the reward or grace points out that the impunity of desistance is a reward that is given
to the subject who has desisted, the one who has erased the bad impression that his act has caused
in the community. To which is added that the guilt of the attempt is compensated to a certain extent
by the meritorious activity reflected in desisting from the attempt.
The theory of insignificant guilt says that the basis for not punishing the abandoned attempt is that
in such a case the subject's guilt is insignificant.
 The theory of the end of the sentence indicates that the subject who voluntarily deviates from the
commission of the crime demonstrates that his will to commit it was not sufficiently energetic, and the
imposition of a sentence is not necessary, taking into account the purposes of general prevention.
and special that this one has.
Some, among whom I am located, seek the acceptance of various arguments. Thus, there would
be criminal policy reasons that tend to facilitate and encourage desistance. Furthermore, there would
be room for the idea that the subject is less guilty in the overall consideration of the fact, making the
penalty unnecessary.

QUESTION 289

What does voluntary withdrawal consist of?

The desistance so that it gives rise to the non-punishment of the action of the person who carries it
out, supposes voluntariness. It is generally expressed that desistance is voluntary, following Frank's
formula, when the subject has said to himself "I don't want to, even though I can"; and that it is not
voluntary when you have expressed "I can't even if I wanted to." This position is known as the
psychological theory of desistance.
Within it, some limit the cases of voluntary desistance to when the subject refrains from continuing
execution, even when he considers consummation possible in accordance with his representation.
Thus, desistance is voluntary if the subject abandons for fear that eyewitnesses who cannot prevent
the consummation will later denounce him. Others consider that there is no voluntary desistance
when consummation is still possible, but continuing in the execution of the crime can cause the
subject such serious consequences that he could not rationally have accepted them. The desistance
of rape when recognized by the victim is cited as an example. This last position is the one that must
be accepted, since there is an impossibility of consummation not only in cases where the
impossibility is physical, but also when it is psychological.
The evaluative theory of desistance points out that through the Frank formula it is not clear when the
subject can or cannot. It says that evaluative criteria must be followed, "... based on general
prevention (only when desistance implies completely erasing the bad example of behavior with
respect to society) or special prevention, that is, when the subject has once again submitted to social
rules." This position is typical of those who maintain that the basis for withdrawal is that the penalty
is unnecessary based on general and special prevention criteria.
The fact that the subject's fear was unfounded does not mean that the desistance ceases to be
involuntary. Nor is desistance voluntary when the consummation of the crime ceases to make sense
for the perpetrator, due to the insignificance of what he would obtain with it, in relation to what he
expected to obtain, for example the loot found in the safe is insignificant.
It is not necessary for the subject to definitively abandon the criminal resolution. It will only be
enough that it is not intended to take advantage of the execution acts carried out for subsequent
execution. For example, there would be no withdrawal if the subject enters a house that is
unoccupied, and separates the objects that he wishes to steal, but decides to postpone said theft
until the next day (thinking of taking advantage of what has already been done), because it has taken
him It takes a long time to select the objects, and you have to go to work; But there would be
desistance if immediately after entering the house, you decide that the theft of objects would be
better handled the next day, since the selection of the objects to be stolen will take a long time, and
that day you do not have enough time because soon must go to work.
In the completed attempt, the doctrine has said that desistance is possible before the fact is
discovered by a third person who can be expected to prevent consummation or to report the fact. Of
course, the discovery must be known to the agent so that the withdrawal is not voluntary. However, it
should be noted that "discovery does not exclude desistance when it is necessary according to the
type in question, such as in crimes in which violence or intimidation is used, since otherwise it would
be practically impossible in these crimes." desistance". For example, the knowledge by the victim in
these crimes of the identity of the perpetrator, which has not been hidden by him.
It is not required that desistance be founded on valuable ethical reasons, for example remorse,
repentance, shame, pity, etc. For example, desistance from an attempted rape is still voluntary if it is
as a consequence of the woman's promise to have sexual relations later; or because of the victim's
promise to pay an amount of money.

QUESTION 290

When does the participant withdraw?

Whether it is accepted that the legal nature of withdrawal is that of a personal cause of exclusion
from the penalty or a cause of atypicality, it must be maintained that the author does not benefit from
the participant's withdrawal.
Following Wessels, there is withdrawal of the participant that gives rise to his non-punishment, in
the following cases:
a) when (by rendering his contribution to the act harmless or otherwise) he spontaneously
prevents the consummation of the act in whose attempt he had participated, or b) when he
spontaneously and seriously endeavors to prevent the consummation, if the act (as for example, in a
improper attempt), is not consummated without his intervention or is committed independently of his
previous contribution.

QUESTION 291

What is the difference between finished and unfinished attempt?

The doctrine distinguishes between unfinished attempt (or attempt itself) and completed attempt
(or frustrated crime). A sector of doctrine, mainly Spanish, believes that the distinction should be
carried out based on objective criteria. Thus there is an unfinished attempt when the subject carried
out acts of execution, but not all those that should cause consummation, thus not producing it. In the
completed attempt, the subject carried out all the acts of execution that should result in the
consummation of the crime, but this did not occur.
Others follow a subjective criterion to differentiate the unfinished attempt from the completed
attempt. They indicate that in this regard this distinction can only be made with a subjective criterion,
since the question of whether the author still has to do something depends only on his plan for
executing the fact. There is an unfinished attempt - they say - when the author has not yet done
everything that, according to his plan, was necessary for the consummation of the crime. The
attempt is complete if the author, according to his plan, carried out all the acts necessary for
consummation, and it did not take place.
QUESTION 292
 What are the limits of desistance?
In principle, desistance produces impunity for the action of the subject who desisted. However, there
is a limit to the non-punishability of desistance; this is that the agent must be held accountable for
those acts of execution that in themselves constitute a completed crime. For example: if the agent, in
order to commit a crime of theft, exerts force on things, but before the consummation of said crime
he voluntarily desists, he must respond for the damages he would have caused; If the subject
voluntarily desists from carrying out the intended rape, he must answer for the libidinous touching he
may have carried out in his attempt, for which he must be condemned for indecent abuse.
QUESTION 293

What does withdrawal consist of in a completed and unfinished attempt?

The voluntary nature of the desistance is not enough for the subject to not be punishable, but it is
required that the consummation of the crime does not occur. Thus, in cases in which, despite the
withdrawal, this occurs, the subject will still be punishable. It must be recognized, however, that
some consider that cases of "unsuccessful desistance", that is, when despite the efforts of the
subject the crime is consummated, should be treated as cases of real competition between the
attempted intentional crime and a consummated culpable crime. In our country, such a solution
would lead to the illogic of punishing failed desistance more severely than the completed crime itself.
It can be discussed what would happen in cases of completed attempt in which the subject
voluntarily desists, but the non-production of the result is not ultimately a consequence of said
desistance. In such a case, it must be admitted that it is enough for the subject to act against it,
without it being necessary for there to be a cause-and-effect relationship between such desistance
and the non-consummation of the crime. This is important, following Cury, in several situations: a)
when the subject mistakenly believes that he has already done everything necessary to cause the
typical result, and therefore, he deploys an activity designed to avoid it, which is strictly speaking
useless; b) when there is an inappropriate attempt, in which the counteraction of the subject is not
the cause of the non-consummation of the crime; and c) when the author's efforts are joined by those
of third parties acting independently, and the causality of the avoidance is doubtful or must be
attributed to the latter. Our law indicates, through the a contra sensu interpretation that is made, that
the non-consummation of the crime must be due to causes dependent on the agent, so that it is not
punishable, so it could be argued that it follows a causal criterion for the effectiveness of withdrawal.
However, the law must be applied analogically to cases in which the subject made a serious and
voluntary effort to desist although the result did not occur for reasons other than desistance. This
analogy would not be prohibited, since it is an analogy in bonan parten.
QUESTION 294

What is active repentance in the attempt?

There is active repentance when the non-consummation of the crime is due to the fact that its
author, once carrying out all the acts necessary for it, repents and prevents the production of the
typical, unlawful and guilty crime.

QUESTION 295

When is repentance voluntary?

 Repentance is voluntary when the agent, after having carried out all the acts that should have
produced the consummation of the crime, prevents the production of the crime through subsequent
acts of his own or that of others promoted by him, where it turns out that active repentance can only
occur in attempts. unfinished

QUESTION 296

Is there an attempt in culpable crimes?

Attempt is not included in culpable crimes, although the conduct is materially projected towards
the consummation of a crime, the will that is aimed at endangering or damaging a legal asset would
be lacking.

QUESTION 297

Is there any damage caused in the attempt?

No, because the typical conduct does not reach consummation, so it is not possible to speak of
damage caused, but in the punishable attempt there is a danger when it endangers an asset legally
protected by the criminal legal norm.

QUESTION 298

How should the non-consummation of the crime be interpreted for reasons beyond the
control of the active subject of the crime?

It is a requirement that is presented in the punishable attempt, so that a crime is not

consummated for reasons independent of the active subject and at the same time of the action of
the same; Therefore, these causes can be physical or moral or psychological that prevent its
consummation.

QUESTION 299

What does unfinished attempt and desistance consist of?

In the unfinished attempt, the acts aimed at producing the result are verified, but for strange
reasons, the subject omits one or more and that is why the event does not arise, there is invariably
an incomplete execution.

QUESTION 300

Is attempt an imperfect crime?

Yes, since the attempt is an imperfect crime since the acts or omissions that constitute it do not
reach the moment of consummation. Therefore, it should be punished with a lower or minimum
penalty with respect to the typically completed crime.