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A more (by Miguel Angel Montoya) in legal practice is using the criminal law as "an option." To cite an example quite clear, the responsibility for traffic accidents with injuries can be dealt with by the (classical) civil proceedings for having caused harm, or criminal proceedings, for the mistakes / crimes of injury or damage. Recently, some scholars have chosen the latter option when there is a bit of neglect (do not observe a traffic light has not been seen for X reason is criminally negligent attitude?)
With the progressive expansion of the scope of criminal we are approaching the U.S. model, where an unpaid administrative penalty entails criminal liability. Is this the criminal model we want in our country? Regular "any conduct as a criminal act will help society feel safer? "This will influence the safety objective?” Diminish the crimes? My answers to these questions are no, and especially not to the last question, more regulating social behavior as criminal acts the crime rate in advance will increase, as will be more potentially criminal conduct and that before were not.
Any rule of law should be reformed, if not more, to suit the social needs of the moment, the criminal laws are no exception. However, the reforms of recent years evoke an expansion of this branch of law into areas that until then were "clearly" out of it.
The changes in the mentality of the legislature may conflict with some of the foundations (principles) for most classic of criminal law, in particular the minimal intervention - only to criminalize the most despicable behavior of society - and the last resort - should used as the ultimate tool when the solution to the conflict cannot provide legal or other branches they have failed (not to be confused with the principle of preference).
This new direction can be seen with the inclusion of a few years ago for crimes against intellectual property, sponsored by the SGAE, or the criminal responsibility of legal persons introduced in the latest reform is not yet in force.
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1 Vote Another important limiting principles is non-retroactivity of punitive provisions are not favorable or restrictive of individual rights, which is also reflected in Article 9.3 of the Constitution. Notably, not criminal law itself, but affects the entire disciplinary proceeding, this is also the administrative.
This principle means that they can punish conduct based on standards that have been issued and entered into force after the commission of that act: if the penalty is intended to guide the conduct of the public to not commit certain acts, it would logical to punish conduct which, when committed, were not banned. In this sense, it is a realization of the principle of legal security, cannot accommodate a standard behavior does not exist.
Conversely, the principle allows retroactivity of punitive provisions favorable, although they are serving. This is what happened with the recent entry into force of the LO 5 / 2010: the recess of some penalties has meant that prisoners serving sentence for a crime whose punishment has been modified to obtain before (or immediately, whichever have completed the sentence) the ultimate freedom. However, if the amendment provides more severe penalties, the penalty shall not be affected.
On the practical side, it has to take into account not the time of sentencing, but the material time. If between the commission of criminal offense and the trial (and subsequent sentence) there has been any change in the law that impinges on penalties coupled with the offense, the penalty will only be altered if it is beneficial to the defendant. It is extracted to be judged on the authors with the Criminal Code in force at the time of committing the crime.
One question in this respect is: If serving a sentence and subsequently be, there is a "rebate" of the sanction involves, do you have the right to compensation? The answer is NO. Taking into account the reason for this principle, at the time of committing the fact the author knew what sentence was accompanied, which is then amend does not entitle you to be compensated.
Finally, commenting that the principle in its positive side refers to "penalty provisions", ie rules. Therefore, should not apply retroactively an article that is favorable if all of them are not.
The principle of guilt based on criminal responsibility and has several practical implications. The main fault is that the author is required (intent or recklessness) so that there is criminal offense and, therefore, entail punishment: nulla poena sine culpa. Article 5 of the Penal Code establishes the principle of fault as follows:
No punishment without malice or recklessness.
While the statement is true, the penalty is not the result of fraud or negligence, but as stated earlier, no fault there is no crime, no crime and no penalty. Will be extended in subsequent entries, the intent and recklessness can be briefly defined as:
Malice: the will to commit an act - in this case, crime - knowing its wrongfulness, in other words, the author intentionally commits the act. Reckless: an act is committed unintentionally; the author carries out an action or proceeding without warning (caution) timely. The justification of the principle on the role of the sentence: If convicted of a crime does not understand the reason for the penalty, what's the use if their behavior will not be modified? The principle of guilt does not imply that criminal law cannot understand the cases where there is no guilt, it would be more correct to say that when there is no fault (no offense), no penalty, but it is a security measure.
On the other hand, it follows that no other person can be sanctioned than the author. If the penalty is imposed for the individual to adapt their behavior to the norm and not re-offend, would not make sense to convict a person not author and therefore not guilty. A clear example can be found in the crimes committed by minors, the parents or legal guardians will be the vicarious liability of damages resulting from the offense, but you will never impose penalties on these people for criminal acts committed by their children or wards. Of course, sometimes a third person "no author of the criminal" may be criminally liable for the actions of "other" illicit or omission of their duties: the teacher who does not give due diligence to monitor students charge.
The final important implication of this principle is that the penalty should be associated with the author's responsibility. For example, if two people are attacking each other, each author must answer for the injuries caused, both will be convicted of a felony or misdemeanor battery but if the share of each has been different, the penalty will vary.