Derecho Penal y Criminología

Plea In Favor of The Attempt-Model in The Case of Lack of Knowledge of The Justifying Situation. A Contribution on The Foundations of Justification in Criminal Law

Simon Kemper — 2024-04-23

The problem of the absence of subjective justification elements – often underestimated in its practical relevance – is still highly controversial. I argue in favor of the so-called attempt-model and try to outline it as the most plausible one in terms of its foundations in criminal law theory, its compatibility with Germany’s positive criminal law, and its practical consequences. At several points I try to make more recent tendencies in criminal jurisprudence fruitful, such as the distinction between the principle of responsibility and the principle of solidarity, the doctrine of objective attribution, and the primarily communicative function of a criminal judgement.

Culpability Without the Possibility of Acting on the Contrary: A Necessary Revision of the Location of the (Non)Imputability?

Andrés Felipe Díaz Arana — 2024-04-23

This article briefly reviews the problem of the possibility of acting otherwise as an element of culpability. It also proposes a compatible interpretation of the concept of freedom with both determinism and criminal responsibility. Finally, it applies the considerations exposed to determine the nature of the apology and the systematic location of the non-imputability in the material theory of crime.

Criminal Responsibility of the Commander or the Superior of Criminal –or Criminally Inclined– Structures for the Excesses Committed by their Subordinates: Three Levels Analysis for Determine an Individual’s Liability for Collective Action

José Manuel Rojas Salas — 2024-04-23

This research studies if it is possible to charge commanders (military or acting as a such) or superiors of criminal –or criminally inclined– structures for the excesses committed by their subordinates. To solve this legal problem, firstly, those kinds of structures are analyzed from different approaches in order to determine the scope of the study. Secondly, the meaning of “excesses” is briefly explained in criminal-legal terms. Thirdly, a solution is proposed based on a three levels of analysis methodological approach in which it is necessary to establish, first, the foundation of the individual’s responsibility in the context of collective action, second, the qualification of their intervention and, third, the scope of the subjective responsibility (mens rea).

Approach to the Crime of Bigamy in Spanish Criminal Law: Evolution and Current Classification of a Crime Against Family Relations

Cecilia Cuervo Nieto — 2024-04-23

This article aims to offer an approximate and general view of the crime of bigamy in the Spanish legal-criminal system. To this end, it starts with an assessment of the constitutional reality of marriage in Spain, and then delves into the progressive evolution that this type of crime has undergone in Spanish criminal history. It focuses on the study of the main dogmatic aspects of the crime of bigamy, whose current validity in Spanish criminal law is increasingly discussed by certain scholars, that consider this crime as the last vestige of a Criminal Law that guarantees morality and civil order.

Antitrust Norms in the United States and Financial Corruption

Christine P. Bartholomew — 2024-04-23

This research article studies the phenomenon of the reduction of antitrust rules in recent years in the United States of America. In the United States there was a strong antitrust tradition through the exercise of private actions to prevent and sanction anticompetitive behaviors. For these purposes, the article studies the most relevant antecedents of the origin of antitrust regulations, their rise, and their recent decline. Finally, the article analyses the possible causes of the regulatory decline and its negative implications in the national and international context of the United States.

The Overflow of Penalties in Colombia: 1980-2022. Qualitative and Quantitative Analysis

Aura Helena Peñas Felizzola — 2024-04-23

This article identifies trends in punishment in Colombia, using criminal policy and criminology theories, under a historical, qualitative and quantitative methodology. It is the second product of an investigation on criminal punishment trends in Colombia. The first one, reconstructed and examined seven theories that explain the reforms to the special part of the criminal code. This one presents the empirical work. It shows the overflow of penalties in Colombia by comparing trends in the penal codes of 1980 (Decree Law 100), and 2000 (Law 599), and its amendments until July 2022. The variables it observes are: (1) changes in the protected legal assets (creation of new assets and hierarchy of protected assets); (2) inventory of criminal offences; and (3) minimums and maximums of conviction. Finally, it explains the current direction Colombian criminal penal policy using Niklas Luhmann’s theory of social system.

The Criminal Dramaturgy

Sergio Trejos Robert — 2024-04-23

Criminology is slowly expanding its field of study. In addition to the mechanisms of social control, it is necessary to consider whether this science should also focus on the mass media approach to the criminal phenomenon. Most people are informed about the criminal phenomenon through news. Additionally, their criteria is strongly permeated by police movies and series. Zaffaroni coined the term “criminal dramaturgy” to refer to a media approach to crime that distorts the nature of crimes and generates stereotyped images of the actors involved (victim, criminals and police). Through criminal dramaturgy, crime becomes the main concern of citizens, displacing from political discussion other current issues (inequality, unemployment, cost of living, etc.). This is called “agenda-setting”. Criminal dramaturgy also conveys that criminal repression is the only viable alternative to the social conflicts that cause the dismantling of the Welfare State.

Anomy and Forfeiture: A Look to the Constitutional Institution from its Grounds

Camilo Alfonso Vargas Tamayo — 2024-04-23

The forfeiture has a poor dogmatic evolution in comparison with other criminal law institutions. Most contributions identified the grounds of this concept in the inside of the legal system. They frequently locate the forfeiture foundations in the Constitution, the statues or as a manifestation of the criminal law of the enemy. The purpose of this article is to give a different basis to this legal concept, from the outside of the legal system. It uses the anomy theory developed by Robert King Merton to state that forfeiture is in his essence a router of anomy, as it gives mayor emphasis to the procedure than to its social goals.

The Violation of Double Conformity in the Special Disciplinary Process of States of Exception

Carlos Arturo Duarte Martínez — 2024-04-23

This article highlights the unconventionality of article 53 paragraph e of the Law 137 of 1994 that regulates disciplinary procedures. According to this provision, in cases where public servants breach their functional duties during states of emergency, the appeal of a conviction that restrict political rights is granted in the return effect. Enforcing disciplinary sanctions without first resolving the appeal is contrary to the right to double conformity and to the principle of intangibility, established in articles 8.2 paragraph h and 27.2 of the American Convention on Human Rights. This articles also proposes solutions to overcome this irregularity.

A Brief Review on the Work “From the State to the Park: The Governance of Crime in Contemporary Societies” By Fernando León Tamayo Arboleda

Nataly Macana Gutiérrez — 2024-04-23

The text that I am pleased to review in these pages is the product of the PhD process of its author, who is not only a lawyer but also a criminologist. He is concerned with the study of cities, their aesthetics, and the way in which urban politics impacts crime control. I explained how that using an innovative methodology, the author proposes a novel reading of the relationship between local and national politics, and an analysis that is undoubtedly an invitation to new research agendas.

Los servicios de utilidad pública como pena sustitutiva de la prisión para mujeres cabeza de familia

Hernán Darío Orozco López — 2024-04-23