Criminal Responsibility and Causation in Criminal Law

Item 18: Subject of the Action

Difference Between the Author of a Crime and the Subject of an Action

The Art. CP 27 states that those criminally liable for crimes and misdemeanors are the authors and accomplices. Art. 28 adds that authors are those who commit the facts alone, jointly, or through another who uses an instrument. Also considered authors are those who directly induce another or others to act and those who cooperate in its implementation.

Perpetrator of a Crime

People who, a priori, according to the typical legal description, are able to become authors.

Types of Crime

Depending on the Characteristics of the Author

• Crimes (any subject can undertake, "who kills...")
• Special Crimes: The description of the type requires that the subject must have certain characteristics or conditions. These crimes are of 3 types:
  • Special Crimes Proper: Requires a specific quality of the subject to commit the crime. This is a typical element, and those who lack that quality are prevented from punishment for these crimes.
  • Improper Special Crimes: The active subjects, depending on whether or not they meet a certain condition, can see themselves liable or exempt from criminal responsibility. (Example: Art. 443 CP official)
  • Special Crimes at First Hand: Only a participant who carries out the crime can be considered an author. There is another subject who uses them. Example: crime of bigamy, abandonment of family...

Depending on the Number of Subjects Involved

• Unisubjective Crimes: These are the majority. Committed by one possible perpetrator.
• Plurisubjective Crimes: Requires the presence of several subjects. These are:
  • Crime Plurisubjetivos in the Narrow Sense:
    • Crimes of Unilateral Conduct or Convergence: All the wills of the parties involved are oriented towards the same purpose.
    • Crimes of Bilateral Conduct or Meeting: Different subjects do not act like a set but as separate parts of the same criminal plurisubjective relation.
  • Plurisubjective Offenses in the Broad Sense: Requires the presence of two or more subjects with an action on their part, but not all behaviors are punished, but only a criminal offense (e.g., extinct crime of usury).

Other Subjects of Crime

• Victim of the Crime: The legal owner of the property subject injured by the offense.
• Physical Object of the Crime: It is legally protected.
• Purpose of the Crime: A person or thing on which the action falls.
• Active Subject: He who commits the crime.

Criminal Responsibility of Legal Persons

Although Criminal Law has always followed the maxim that society does not commit crimes, contemporary business life has led to a large number of offenses stemming from the corporate level, even outnumbering crimes committed by individuals. To prevent those responsible for corporate crime from going unpunished by taking refuge in the legal entity in which they work, the CP was amended in 2010 to introduce a new section in Article 31 which addresses the criminal responsibility of legal persons. Much of the doctrine, many lawyers, do not understand this responsibility, arguing that the legal person lacks certain qualities to be responsible. Critics argue that this criminal offense cannot hold the entity directly criminally responsible because:

• It violates the principle of personality's subjective sentences.
• It marks the beginning of guilt, because a legal person, alone, has no decision-making capacity or willingness to act.
• The process rules are not intended for legal entities and can only be made against individuals.
• The penalty for prevention cannot be enforced or complied with by the legal person.
• The problem would involve its own special crimes, those that require an active subject with certain qualities typified in the offense.

To resolve this conflict, most laws have introduced a "clause of accountability" by covering individuals who have committed acts for or on behalf of the corporation. Related to crime and legal responsibility of the person is found in Arts. 31, 31 bis, 318, 290 et seq. Article 31 bis, introduced by the reform that came into force in 2010, deletes paragraph 2 of Article 31 and sets out that 31 bis explicitly refers to the possibility of criminal responsibility for legal persons.

Action, Omission, and Commission by Omission

Crime

Bodily movement that initiates a causal process in violation of a rule against it. This punishes the conduct of an activity or the production of a result. Two types are distinguished:

• Crime of Mere Activity or Formal Crime: For the consummation of the type, there must be a bodily movement. Refers to crimes against legal goods, not physical ones. Results may occur, but are not enforceable.
• Crimes of Material Result: For a crime to be consummated, action and results are required. In this kind of crime, attempt is included, which is punishable by merely endangering the legal property.

Crimes of Omission

It is punishable by not performing a behavior, and there are two types:

• Crimes of Pure Omission or Own Omission: Failure to complete an expected activity is punished. Example: failure to provide assistance.
• Crimes Committed by Omission or Improper Omission: Stated in Article 11 of the CP, and punishes the outcome of that omission. It must involve the non-realization of expected behavior and the non-avoidance of a result.

The fundamental difference between proper omission and improper omission (commission by omission) is that in the second, the omitting subject is required to be in a special position of care to guarantee the legally protected good. Example: a lifeguard at a pool. Their position guarantees the health of bathers, so they should rescue them; failure to do so is a commission by omission. Article 11 of the CP states: "Crimes or offenses which consist in the production of a result are only deemed committed by omission when the non-avoidance of the same, violating a specific legal duty of the author, is equivalent, within the meaning of the text of the Act, to its causation. To this end, the omission will be equal to the action: If there is a specific legal or contractual obligation to act. When the omittente creates an opportunity for risk to the legally protected by a previous act or omission." Thus, for there to be a commission by omission, there must be a guarantor subject's previous position as an omittente. The commission by omission will be given (omission = commission) when: There is a special legal duty to act and it is not done. The omittente created a chance of risk to the legally protected.

Position of Guarantor in Commission by Omission

• Position of Guarantor from a Legal or Formal Criterion: Requires the presence of a legal text. The contractual relationship that creates the position of guarantor is requested at the time of the production of the result. A dependent relationship exists between the subject and the legal property. Demands interference; there is a situation where the subject is acting and creating a situation of danger and is required to prevent the threat from injuring a legal right.
• Position of Guarantor from a Material Criterion: Outlines the position depending on the guarantee features that an individual has taken or has imposed on their area of operation. Thus, the starting point here is:
  • Function of legal protection, dependency relationship between the juridical good and the subject that makes him directly responsible for it. This includes:
    • Existence of family ties
    • Situations of risk for all those cases in which there is a subject's voluntary participation in a hazardous activity with several people, so they are tacitly obligated to care for each other.
    • Voluntary assumption by the subject of the direct care of a legally protected good. Example: a woman who fired the doctor and nurses caring for her husband.
  • Creation of an obligation to control sources of danger: The subject has, within their sphere of work, activities that create risks or endanger people. Thus, they have the duty and obligation to control this dangerous factor. This activity would include the following:

State Intervention: Who has caused the hazard has an obligation to protect. It is necessary that the finally produced result appears directly connected to the omission of the subject. That the subject has under their control a source of danger to the legal property. Here, the subject is responsible for preventing the danger from materializing. Cases of responsibility for others. Situations of duty of care of certain people. (Example: a father's duty with respect to the actions of their children). To conclude, the position will be that of guarantor if there is a function of protecting the lives of certain people before the omission, or if there was an oversight function on certain sources of danger to life or affecting the integrity of a plurality of persons. The registrant of this domain is entrusted with the task of ensuring the legal rights that can be affected by its scope, and this protection depends on the subject fulfilling their obligation.

Causation

Here we focus only on so-called result offenses. There are two theories to study this causal relationship:

• Individualizing Theory: Not every condition may be regarded as a cause of the result, but only that condition which is characterized by having greater causal efficacy. This is the efficient cause.
• Generalized Theory: All conditions that have produced a result have the criminal legal cause. Its best example is the theory of equivalence of conditions.

Theories of Causation

1. Theory of Equivalent Conditions
2. Theory of Adequacy
3. Theory of Relevant Causality

Theory of the Method of Terms

Considers all the conditions necessary to produce a result to have the same value as causal. To correct this theory, two others emerged: the theory of adequacy and the theory of relevant causation. While acknowledging that all conditions that combine to realize a result have the same value, they also recognize that some are more suitable than others or are most relevant.

Theory of Fitness

Developed by Von Kries and Von Bar, this theory holds that for legal-criminal purposes, only the condition which, according to experience, is adequate to produce the result is considered a cause. To determine the suitability, a target forecast is made by examining the rules of experience and taking into account the subject's personal behavior. This theory was criticized for relying on some assessment and therefore running the risk of legal uncertainty.

Relevance Theory

History of the theory of objective imputation. Understands that all conditions need not be legally equivalent. Thus, although all are causes, legal significance can be attributed to some and not to others. The relevance theory argues that to attribute the result to the action, it is required that the causal link be legally relevant. Here again, the problem is the lack of specificity as to what the relevant criteria are. To solve this problem, the theory of objective imputation arose.

Theory of Strict Attribution

Its exponents are Jescheck and Roxin. This theory holds that an individual is only liable for a result caused by their behavior when a link can be established between this outcome and their conduct, if there is any objective fault. The steps in the objective complaint are two:

1. Causation: Judgment on the actual existence of a causal link between action and result.
2. Allocation to the action of the cause: To what extent can the subject be charged because it can really be said that the result is "their work".

As for the criterion of imputability in this theory, there are four:

1. The action must create or increase a risk.
2. This risk should be prohibited by law.
3. The risk must therefore be translated into a typical result.
4. The result caused is the one that the rule breached is intended to prevent, disapproving of the risk created.

A Correct Theory of Objective Allocation

We have collected six corrections:

1. Rule of the lack of legally relevant risk, according to which there is no objective imputation when the action typically does not involve significant risk.
2. There will be no objective imputation when the result would have occurred equally even with appropriate behavior according to the standard.
3. Principle of decreased risk: No objective imputation occurs when the action aims to avoid or delay other more serious results.
4. Principle of autonomy of the victim: There is no objective imputation when the outcome is a result of reckless conduct of the victim.
5. Principle of attribution of results to an outside area of responsibility. Results whose avoidance corresponds to the professional responsibility of others are not objectively attributable to the subject.
6. There will be objective imputation of causality in hypothetical cases and abnormal construction of the victim.

Theory of Interruption of Causal Link

If there is an interruption, the material results shall not be objectively attributed to the subject. Thus, there is no charge to the subject for results involving a freak accident. The problem arises when we want to determine what is a freak accident and what is due to natural causes. To determine this, the doctrine stipulated that: In the case of bankruptcy of the factors prior to the action, the causal link is not considered interrupted. If subsequent events occur, the TS tends to consider the causal link broken, but only if the facts are intentional or malicious. The TS has considered, however, that there is no causal link in cases in which the result is precipitated.

Exclusion of Causes of Action

There are three:

1. Juggernaut: External force that forces the subject to complete the bodily movement or omission. It can be an irresistible physical force or an insurmountable psychic force, such as insurmountable fear.
2. Unconscious: The subject is deprived of the capacity for action. There are three types:
   • Sleepwalking: Agreement among the whole doctrine.
   • Hypnosis: No agreement among the whole doctrine. The "School of Nancy" argued that subjects resist the suggested impulses but eventually end up executing them if the suggestion is repeated several times. The "School of Paris", however, denies that possibility, and there is a middle school that holds that the power of suggestion will depend on the characteristics of the subject undergoing hypnosis. If we could show that the capacity for will has been canceled, responsibility is disclaimed.
   • Drunkenness: There are two types:
     • Drunkenness or Dormancy: Deeper. The subject has no ability to control bodily movement.
     • Mild or Deep Drunkenness: The subject's capacity for will is somewhat graduated; the influence that the subject's action had could have been avoided.
3. Reflex: Movements made unconsciously without any involvement of will, for example, vomiting. In contrast to these are the short acts or impulsive movements in which there is some intervention of the will and, unlike reflex movements, reactions can be different to the same stimulus.