Foundational Concepts of Criminal Law

Descriptive vs. Regulatory Elements in Law

Descriptive Elements

Descriptive elements are basic and elementary. They specify the circumstances or facts in each case, describing the behavior and the actual elements of a legal type (e.g., a crime). These elements are verified through the senses.

Regulatory Elements

Regulatory elements constitute the objective part of the legal type. They review or complement the descriptive elements. These elements are conceptual in nature and are not perceived by the senses.

Crimes of Injury vs. Crimes of Risk

Crimes of Injury

Crimes of injury cause direct damage to a legally protected interest. This damage does not necessarily involve material harm but affects a legally protected right.

Crimes of Risk

Crimes of risk are offenses against legally protected interests of special value that criminal law safeguards from direct attacks. To prevent these attacks, criminal law aims to intervene proactively, before actual harm to the legal right occurs.

Classes of Crimes of Risk:

• Abstract Danger: There is a presumption that the conduct (whether active or passive) is deemed dangerous to the legally protected interest.
• Specific Danger: It must be verified in each case whether the legally protected interest has actually been endangered.

Understanding the Continuing Offense

A continuing offense is characterized by the consummation of the crime causing injury to the legally protected interest, which occurs in a prolonged and uninterrupted manner.

Special Crimes and Their Classifications

Special crimes are offenses that cannot be committed by just anyone; they are characterized by the requirement that the perpetrator possess a certain quality or status.

Classes of Special Crimes:

• Proper Special Crimes: These are offenses where if the perpetrator lacks the required personal status, the crime cannot exist at all.
• Improper Special Crimes: In these offenses, if the personal condition is met, the specific crime is committed. However, if the condition is not met, the act may still constitute a different, general crime. For example, embezzlement of public funds (if committed by a public official) versus general theft (if committed by a private citizen).

The Theory of Equivalence of Conditions (Causation)

Conditio Sine Qua Non

The Theory of Equivalence of Conditions, also known as conditio sine qua non, is the first and most generalizing theory of causation. It posits that if one mentally removes any of the conditions that contributed to a result, and the result would not have occurred, then that condition is considered a cause. In essence, any behavior without which the result would not have occurred is deemed a cause.

Objective Imputation in Criminal Law

Requirements for Objective Imputation

Objective imputation requires an objective criterion to determine whether an action can be attributed to a subject as their responsibility. This criterion establishes a normative link between an act and its outcome.

Objective Imputation: Beyond Mere Causation

To affirm the objective imputation of a result to an expression of will, a mere causal connection is not sufficient. It requires a legal link (or normative assessment) between the expression of will and the result. Furthermore, the subject's behavior must have created a legally disapproved risk (under criminal law) that ultimately produced the result. Therefore, objective imputation seeks a legal connection, not merely a factual cause-effect relationship.