Legal Justifications and the Exercise of Rights

Line of Duty and Legitimate Exercise of Rights

Line of duty and the legitimate exercise of a right, authority, or office are governed by Art. 10 No. 10.

Acting in Pursuance of a Duty

Duty in this context has no moral meaning; it is strictly legal. These are cases where apparently felonious acts are imposed by law on the subject in the line of duty. This assumes criteria of proportionality and suitability. It protects the practice of law and prevents abuse.

The Problem of Obedience

This involves a duty mandated by a superior. This applies only if a superior's order is licit. If the order is illegal, the justification is inapplicable. The majority doctrine holds that a criminal act committed by order of a superior retains its illegal character. For the exculpation of the subordinate, one could argue the non-enforceability of other conduct (Art. 234 CJM) or Art. 10 No. 9.

Legitimate Exercise of a Right

The legitimate exercise of a right does not justify excess or the abuse of the law.

Legitimate Exercise of Authority or Office

Proof of this resides in the legitimate exercise of rights and duties in direct relation to the implementation of a person's office, position, or profession. For example, a lawyer acting in their client's interest may, through their writings, attempt to draw out facts that harm the reputation of the counterpart.

Medical Activities and Legal Challenges

Medical activities are normally considered atypical (often involving tacit consent) and require strict adherence to the lex artis. Key problems include:

• Transplants: Law 19,451 (10.04.1996)
• Injuries for experimental purposes
• Aesthetic interventions
• Terminal and irretrievable patients

The Role of Consent in Legal Justification

Consent consists of accepting or permitting an action, freely and with full information, by the individual affected by the typical conduct. It should not be confused with forgiveness. In the Penal Code (CP), there is no specific rule; however, following Novoa, we consider:

• Cases where the absence of consent is inherent in the concept of the crime:
  • Art. 144: "...against the will of its inhabitant"
  • Art. 146: "...against his will"
  • Art. 361 No. 1: "when using force or intimidation"
  • Art. 432: "...without the owner's will"
• This also includes Art. 488 and Art. 197.

Sports Activities and Physical Contact

Initially based on Art. 10 No. 10 (legitimate exercise of a trade), the problem arises with more violent crimes, often involving custom contra legem.

Failure to Act Due to Legitimate Cause

According to Art. 10 No. 12 (first part), a person may incur an omission if they were prevented by a legitimate or unavoidable cause. Due to the impossibility to act, the omission technically no longer constitutes missing behavior. Jescheck refers to this as a "collision of justifying duties."