Criminal Theory of Action and Liability

Item 2: Criminal Theory of Action

The Theory of Action (Objective Type I)

Criminal Conduct and No Action Assumptions

The relevant criminal conduct (action or omission) can only be intentional or reckless (Arts. 5 and 10 CP) and, therefore, voluntary (the principle of guilt). Criminal law can only deploy its motivating role against voluntary behaviors. Therefore, relevant criminal conduct (active or omissive) must be rejected where no voluntary element is present.

The classical assumptions of "no action" or lack of relevant criminal behavior are:

• Irresistible force: Of an external and invincible character (excluding vis mental or threatened action).
• Reflex movements: Distinguished from impulsive acts, these are reactions to external stimuli without passing through the conscious will.
• States of unconsciousness: Such as sleepiness, dizziness, narcosis, or lethargic rapture.

Anyone who puts another person into one of these situations can be held criminally liable for the crime. If someone puts themselves in that situation, they can be held criminally responsible under the doctrine of actio libera in causa.

Subjects of Typical Behavior and Legal Persons

A) Active subject: The person who performs the typical behavior or contributes to its commission.

The rule of "acting on behalf of another" (Art. 31 CP) does not serve to transfer criminal responsibility from one person to another, since the principle of personal criminal liability prevents a person from answering for the criminal conduct of another. The function of this rule is, on the contrary, to allow those who perform the typical behavior to be held criminally responsible for the offense, even if they do not themselves satisfy the required subjective qualities, provided they act on behalf of someone in whom those qualities concur.

Example: A corporate manager who defrauds corporate tax might not personally meet the taxpayer requirement (demanded by Art. 305 CP), but they can still be held liable for the special crime under Art. 31 CP.

The "act of legal persons" means the Criminal Code does not provide for the direct physical performance of legal persons, but rather the possibility that they are held liable for the criminal act committed by someone acting for their benefit, provided that the conditions of Art. 31 bis CP are met:

• The perpetrator is a representative of the legal person, acting on its behalf or for its benefit ("transfer of responsibility").
• The perpetrator is under the authority of the representative and was able to commit the crime because proper control was not exercised over them ("organizational default responsibility").

The Code provides a limited list of crimes for which legal entities may be held liable.

B) Passive subject: The legal owner of the property affected by the crime, or the "offended party" of the crime.