Understanding Antijuricidad: Definition and Defense

Antijuricidad: Definition and Types

Antijuricidad refers to typical behavior that harms or endangers a legal right and is not authorized by law. There are two types of antijuricidad:

• Material Antijuricidad: Focuses on the social harm caused by the behavior.
• Formal Antijuricidad: Focuses on the behavior's contradiction with civil mandates and prohibitions, specifically the absence of express statutory authorization (justification) for the harmful conduct.

Absence of Illegality

Legal grounds for justification generally involve:

• Lack of interest (e.g., Section 141).
• The existence of an overriding interest (e.g., defense of necessity, duty, legitimate exercise of a position, authority, or office, and failure of just cause).

Justification: Legitimate Defense

Legitimate Defense (Legítima Defensa): The rejection of unlawful violence, by the attacked person or a third party, against the aggressor, without exceeding the need for advocacy and within the rational proportion of the means employed to prevent or repel it (Jiménez de Asúa).

• Article 10 No. 4: Self-defense.
• Article 10 No. 5: Defense of relatives.
• Article 10 No. 6: Defense of strangers.

Requirements for Self-Defense (L. Def. Propia)

A. Unlawful Violence:

• A.1 Assault: Human behavior objectively suitable to injure or endanger a legally protected interest.
• A.2 Illegitimacy of the aggression: Against the law, but not necessarily a crime.
• A.3 Current or imminent aggression:
  • Actual: Aggression is ongoing, and the injury to the legal right is not fully exhausted.
  • Imminent: Predictable course of action.
• Considerations:
  • The problem of temporary excess defense (Art. 11 No. 4 and Art. 10 No. 9).
  • The reality of the aggression (existing, not imagined; related to avoidable or unavoidable error).
• A.4 Object of aggression: Defendable assets. Article 10 No. 4: Any right.

B. Rational Need for the Means Employed in Defense:

• B.1 Limits of the defense: When and with whatever means are reasonably necessary to prevent or repel the concrete aggression. Criteria of proportionality and subsidiarity apply.
• B.2 Excessive intensity in defense: Using a medium that produces irrational, unnecessary damage to the aggressor (Art. 73, without prejudice to Art. 10 No. 9).
• B.3 Object of defense: Must be directed against the aggressor.

C. Lack of Sufficient Provocation:

• Carrara: When this requirement is not met, legitimacy is determined by Art. 73 or Art. 10 No. 9.

Defense of Relatives (L. Def. Parientes)

Article 10 No. 5: Applies to spouses and relatives by blood or affinity in the whole straight line and collaterally to the second degree inclusive. Requires conditions 1 and 2 of Art. 10 No. 4. If there was provocation by the victim, defense is allowed, provided that the defender did not participate in it.

Defense of Strangers (L. Def. Terceros)

Article 10 No. 6: Same as Art. 10 No. 5, but with the additional requirement that the defender has not driven the illegitimate act in any way.

Privileged Defense (L. Def. Privilegiada)

Final paragraph, Art. 10 No. 6. Situations:

• A. Rejection of escalation, day or night, in an inhabited house, department, or office, or on its premises, provided they are inhabited.
• B. Rejection at night: Escalation of commercial or industrial premises, whether inhabited or not.
• C. Preventing or attempting to prevent the crimes of kidnapping, abduction, rape, patricide, homicide, robbery with intimidation, and theft by surprise.

In this type of defense, the concurrence of the requirements of legitimate defense is legally presumed unless there is proof of unlawful violence.

Special Case

• CJM Art. 410: Excludes criminal responsibility for police officers using their weapons in self-defense or in immediate defense of a stranger who, by virtue of their office, they must protect or assist.
• Article 208 CJM: Extends its application.
• Article 23 bis DL Investigaciones Pol 2460 LOC: Exempts from criminal responsibility Investigative Police of Chile staff who, to fulfill a duty, find it necessary to use weapons to reject violence or overcome resistance to authority.