Thursday, November 24, 2016

We do not know the criminal law

“A set of laws describing crimes by assigning a penalty for the author of behavior that constitutes, or in some cases replaced by a measure of security, while establishing rules that determine the application of the same” ( Creus).
“A set of rules and legal provisions governing the exercise of sanctioning and preventive power of the state, establishing the concept of crime as a prerequisite for state action and the responsibility of the perpetrator, and involving the violation of the rule a finalist worth or an insurance measure “(Jimenez de Asua).
“A set of laws that translate rules intended to protect legal rights and specify the scope of its protection, which is called rape crime and aims to have resulted in a particularly serious legal coercion, which seeks to prevent the commission of further offenses by the author “(Zaffaroni).
– A broad concept: A set of rules set by the State to punish human behavior contrary to the law.
– A restricted concept (Soler): * Aim: The part of the law made by all rules of retributive punishment equipped.
* Subjective: (Nuñez) The branch of law that regulates the public power to punish and to implement safety measures the perpetrators of punishable offenses. (Punishable: anything that deserves punishment).
• the creation of offenses: such establishment is operated by the description of behaviors or actions that are determined to be prohibited by the allocation of a penalty for the case to be made,
• sentencing: punishment, with its punitive aspect, in relation to the author’s guilt is a penalty of uniqueness in law and is, therefore, essential hallmark of criminal law,
• determination of safety measures: the extent achieved in modern criminal law by the security measures, its relations with the criminal dangerousness of offenders, makes it no longer followed conceptualizing criminal law only in terms of punishment as if it were the only legal consequence of the realization of the prohibited action. Determining security measures therefore belongs to own functional field of criminal law.
It is a public, regulatory, evaluative and finalist law which has the standard and legally as poles of its axis and whose nature is eminently penalties.
• public law for the creation of offenses and the threat of imposing a penalty is a state activity as a public person; and it is through this that achieves its highest expression of internal sovereignty. In addition it corresponds to a public body, the courts, who are responsible for resolving the causes of criminal responsibility.
• normative, evaluative, finalist and guarantor legislation: normative nature, because it attempts to regulate social life not only know; is evaluative as values ​​to assign it to some of the many facts already assessed as illegal by law; He is a finalist, because it seeks the protection of individual components of society, guaranteeing (guarantor) the enjoyment of legal rights. These characters correspond to any right.
• Right penalty and right complementary: What characterizes the criminal law is punishment, and as such, can be assigned complementary nature of law, since it only appear when the legislature considered insufficient other sanctions in view “social” importance of legally protected.
• Your rules are always public policy: mandatory by the national bodies and the prosecutor, inalienable and unchangeable ministry by agreement between the parties to the relationship.
• Regulator external events: excludes the thought, desire, consciousness, so an external manifestation is necessary.
• Acts legally feasible: Art 18 CN. “No inhabitant of the Nation may be punished without trial, based on the fact the process above law.” Article 23 CN. “… The President during the state of siege you can pronounce judgment or apply penalties … “Art 95 CN. In any case the President of the Nation shall exercise judicial power …”
b) substantive criminal law, procedural and penitentiary.
Substantial Criminal Law: It is the branch of law consists of the rules concerning the crime, that is aimed at gifted retributive punishment rules that constitute the criminal law. Right fund whose sole source is the Congress, are essential to implement the criminal law to the case.
Criminal Procedure: Aims to regulate the procedure for applying criminal law. Studying or regulating the application of criminal law enshrined in through the various procedures standards.
Criminal Law Prison: It concerns the application of the penalty or security measure, established by the substantial criminal law or materials and their application is regulated by the Criminal Procedure Law. It is the essential part of criminal law enforcement. Rules governing the fulfillment of criminal punishment.
These three subdivisions of criminal law are closely interrelated: Ex .: the crime of murder is sanctioned by the DP Substantial or material (Penal Code.), The Code. Criminal Procedure corresponds to everything related to the prosecution of the murderer and the Prison Law referred to the application of the penalty it deserves.
c) Subjective and objective criminal law.
The first is the power to do or not do something; the second is law, rule or regulation commands us, allowing us or that we prohibited. (Jimenez de Asua)
Subjective (“right to punish” the state power to punish) is the ability of each State to dictate rules of conduct in accordance with the aims and punish offenders. It is a power, as only the state can enact criminal laws. It is also a must, because it is a function of the state to maintain social order and restore it when it has been violated.
Objective: (“ius poenale”) is the legal system, or set of rules by which the State systematized, and its precise limits punitive power, fulfilling its role and guarantee protection of legal rights; order Criminal Law.
d) Criminal Disciplinary, administrative, fiscal and criminal law distinctions.
Criminal Discipline: It is applied by the State itself, its laws are in decrees, regulations, etc., referring to members of the people in a hierarchical structure.
We can define it as a set of legal rules that establish legal sanctions for those who violate the order of hierarchy or support. It aims to achieve and ensure the normal development of a certain hierarchical order. (Ex .: The Church).
Differences: – The rules of disciplinary law only to those who depend on a hierarchical relationship apply. Criminal law applies to all subjects.
– The appropriate means of criminal law is the public shame that affects the honor, heritage, liberty, whereas D. Criminal disciplinary penalties representative uses to achieve such subject (warnings, exclusion, separation, etc. ) all the hierarchical order.
– The public punishment should be applied by special judicial bodies by rules set out in D. Proc. Criminal is not discretionary. The disciplinary penalty is usually discretionary power can be regulated or not, but this regulation is not as strict.
– Criminal law lacks legal disciplinary figures, which are replaced by general precepts.
– The disciplinary penalties are not intended to repression, but the protection of the discipline and the development of public activities.
Administrative Criminal Law: A set of rules and provisions to ensure, under threat of punishment directed against individuals, fulfilling a duty of the particular public administration. Ex .: The administrative criminal law imposes a surcharge on the particular time does not pay a contribution.
Differences: – The justifications of the Criminal D. have only a small extent to the Administrative except DP if it’s justifications of public law.
– In the Administrative DP can not be a difference between intent and guilt, but within limits presumptions of guilt are necessary.
Fiscal Criminal Law: The set of rules which set sanctions for acts that violate the interests of public finances.
Differences: – The tax and penalty is a pecuniary remuneration (fixed or percentage scales subject to fines) penalty.
– Not only are criminal reactions, but to achieve financial benefits for the state it pursued.
– The administrative penalty does not necessarily imply a loss or damage, or an injured right, while the tax penalty does require property damage in fiscal equity.
– Responsibility: For Fiscal DP there is “taxpayers”, unable or incapable.
e) Division of Criminal Law in general and special part.
General part: it applies to all people and has its main source in the CP (Article 1 to 78.) And supplementary laws. They conform: Military DP, the DP Maritime, Commercial DP. Basic ideas predominate der. Criminal. D. Special conditions the P..
Special section: includes the set of rules that apply to certain groups or categories of people considering what the person requirements, matter and territory (Article 79 onwards.). Make a thorough study of the various criminal cases. It describes conditions that will or will not crimes.
2. Criminology. Concept.
Is a casual science that aims to study the offender, crime, punishment, criminal law (criminal phenomenon, that is why crimes are committed, why there are people who commit, etc.); but as opposed to criminal law, it does so from the standpoint of being.
Garofalo: “It’s the science that involves the study of the offender (anthropology, pscopatología, psychology, criminal); the study of crime (physical and social factors); and the fight against crime (penalogía) “.
Criminology studies properly understood the offender whole man (body and soul); I also studied in their family and social environment and the study also makes the man as an individual and as a social phenomenon, which allows the legislator to employ means prophylaxis (individual and social).
The object of criminology is the study of crime. The Criminal Law studies the criminal law, however criminology, crime as well done, study other forms of unlawful behavior. Study the effective power of the criminal law as a determinant of the behavior of individuals to object to clarify its effectiveness as an instrument of general prevention.
Relations with the Criminal Law.
The criminal is a science that comes to help the criminal law to a greater understanding; It makes contributions to criminal law, mainly in the identification and assessment of the penalty or security measure.
Criminology Sciences members.
• Anthropology: it will consider the crime as an event in the life of the individual.
• Biology: according to Von Liszt is divided into criminal somatology (anatomy – physiology) and criminal psychology (so that psychology is part of the criminal biology.
• Criminal psychology: Ferri said that psychological studies have more significance than strictly organic to analyze crime. Study the crime from the psychological point of view.
• criminal Sociology considers the crime as an event of social life, altering the order of an entire community, and studies according to the social sphere where it develops.
• Penalogía: aims at studying the penalties or sanctions imposed by criminal law the violation of its rules.
Auxiliary disciplines of criminal law.
Forensics is the application of medical cases to civil and criminal proceedings that can be clarified by them knowledge. Ex .: determine a death.
Forensic Psychiatry serves to establish the criminal responsibility or insanity of a crime.
Legal Chemistry for blood tests, find out the old ink on paper or to determine the existence of drugs, alcohol, etc. within an organism.
Criminal statistics: to establish a community crime rate; to determine the effectiveness of penalties in terms of recidivism.
Criminal policy: the fight against crime in the person of the offender carried out by it and similar measures. (Von Liszt).

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