Revista de Estudios de la Justicia

Is the agreement necessary for coperpetration? A critical review acording to theory of action

Nicolás Acevedo Vega — Fri, 29 Dec 2023 00:00:00 +0000

The purpose of this article is to question the traditional thesis of the "common plan" or “agreement” according to which criminal co-perpetration requires an agreement, common plan or joint decision. To this end, this conception is analyzed and then contrasted with the criticisms that have been raised by several authors. Having stated the above, this issue is analyzed from the perspective of the theory of collective intentionality in order to establish the criterion that would satisfactorily differentiate those collective actions that characterize co-perpetration. Finally, the application of the above is analyzed with regard to chilean legislation and two cases resolved by the courts of the same country.

Theoretical approaches to explain interpersonal, prison violence: a unresolved debate in the Chilean penitentiary system

Alejandro Arévalo Sarce — Fri, 29 Dec 2023 00:00:00 +0000

This article analyzes interpersonal prison violence, based on theoretical approaches developed from the mid-20th century to date. We ask ourselves: What are the theoretical developments that explain the core elements of interpersonal, prison violence; and what impact does this have on prison life? The methodology applied was an exhaustive review of the specialized literature. Some of the results indicate that, within the academic debate, the influence of two models stands out: deprivation and importation; while the first postulates that violence is generated as a result of the precarious prison environment, the second highlights the sociocultural characteristics of individuals as the most influential in affecting coexistence between inmates. Nevertheless, these two classic approaches leave aside other explanations of the phenomenon, which delve into the dynamics of administrative control. Finally, some new approaches postulated by criminological research are addressed, such as incarcerated masculinity, prison victimization and, more recently, prison governance, opening the field of study to a more comprehensive look at the phenomenon.

The crimes of homicide and murder as subsequent events to a sexual crime: Regulation in the Spanish penal code after the latest reforms

Carmen Requejo Conde — Fri, 29 Dec 2023 00:00:00 +0000

The following pages analyze the crimes against the life (homicide and murder) that follow a sexual crime in the Spanish penal code, after its drafting by Organic Law 1/2015, that made the attack on life (murder) followed by a crime against the sexual freedom of the victim a hyper-aggravated crime punishable by a reviewable permanent prison sentence, established in Spanish Law in that same year. The first section of this article describes the assumptions applied by the judges in these first eight years of validity. The relationship of this crime with the circumstance that it is a death to prevent another previous crime from being discovered, which was reintroduced on that same date as an element of murder, made the compatibility between both crimes a far from peaceful issue, on the that the Spanish judges have also ruled at this time considering that the application of the two crimes together to a single case breaks the non bis in idem principle.

Un enfoque mixto para justificar la penalización de la colusión: La experiencia particular de Chile

María Francisca Ossa Monge — Fri, 29 Dec 2023 00:00:00 +0000

Este ensayo explora las justificaciones detrás de la criminalización de los carteles, desde el punto de vista del fin tanto retributivo como disuasorio de la pena. Con este objetivo en la mira, conceptualizamos teóricamente la figura de los carteles y de la criminalización, analizando los fines que se buscan al penalizar esta práctica anticompetitiva. Analizamos las dos teorías clásicas de la pena —fin retributivo y disuasivo o utilitarista— y la efectividad que pueden tener las distintas sanciones aplicables, antes de examinar la situación particular de Chile en el contexto de esta discusión. Históricamente, los carteles fueron una figura penal desde la introducción de esta práctica anticompetitiva, solo para perder su calidad de delito en la primera década de los 2000, periodo que fue precisamente testigo de los casos más mediáticos de carteles en Chile a la fecha, lo que llevó a la reinstauración de la sanción penal de estos. Nuestro análisis se centrará en cómo la discusión legislativa que dio origen a esta reinstauración del cartel como delito proporciona luces sobre el impacto que causaron los casos emblemáticos de carteles en la sociedad chilena, y cómo, a pesar de que el foco de la discusión legislativa estaba orientado a la disuasión como el objetivo buscado con la penalización, connotaciones de índole moral y del fin retributivo de la pena que fueron parte de la discusión son útiles para inferir un enfoque mixto en lo que pasó a ser la actual configuración de la figura penal de la colusión en Chile, la cual no ha sido aplicada a la fecha, casi una década después de su reinstauración.

The Delimitation of the competence of the environmental administrative litigation in the jurisprudence of the environmental courts

Álvaro Dorta Phillips, Eduardo Konig Rojas — Fri, 29 Dec 2023 00:00:00 +0000

The judicial challenge of administrative acts of the State in Chile is governed by three mechanisms established in the country’s legal system. In the first place, there are the special actions contemplated in the law, whose competence corresponds to the ordinary courts. Second, there are the special actions contemplated in the law, the jurisdiction of which corresponds to the special courts. Thirdly, constitutional actions may be brought before ordinary courts. In this context, doubts arise as to the categorization of certain administrative acts, especially those of an environmental nature, since there is no clear legal definition in this respect. This lack of legislative clarity has led to uncertainty as to whether certain acts must be challenged before ordinary courts through constitutional actions or whether they must follow the general environmental claim action process, established in Article 17 N° 8 of Law N° 20,600. In the absence of a precise answer in the law, judges have had to address this question in their jurisprudence. This situation poses the risk of future jurisdictional disputes, as two types of courts could declare themselves competent to resolve the same cases. In this context, the Environmental Courts has taken the initiative to grant itself jurisdiction to hear cases in which this uncertainty exists, with the aim of ensuring broader access to environmental justice.

Two issues of improper omission in Chilean criminal law: The basis of their punishability and the punishability of result-crimes from specified means and modes

Alejandro García Cubillos — Fri, 29 Dec 2023 00:00:00 +0000

In the first part, this paper analyses legal foundation’s alternatives for improper omissions in Chilean criminal law and delves into the option that it considers most acceptable: the basis is gotten from each criminal description of the special part. Additionally, this paper denies the existence of a general clause punishing improper omission in Chilean criminal law. In the second part, it analyzes the punishability of improper omission based on the distinction between result-crimes and behavior-crimes.

Observations on the approach to the mistake of law defense in Chilean jurisprudence

Jorge Boldt Silva — Fri, 29 Dec 2023 00:00:00 +0000

The following article presents different considerations regarding the mistake of law and how it has been addressed in the Chilean legal system. The author opens this chapter with a brief historical review of the role played by unlawfulness and its knowledge or ignorance within the imputation of facts, emphasizing the criminal field regarding these crimes. He also reviews the trends, opinions, and doctrinal development that it has had over time. In a second section, the author briefly explores the limits between the mistake of law and the type of error, facing the complex figure of putative self-defense, culminating with the case against Castro Muñoz. Next, the author reviews the jurisprudence before this case, explaining what the sentences consisted of, the application and scope of article 8 of the Chilean Civil Code, and the idea of voluntariness present in article 1 of the Chilean Penal Code. It ends with a section dedicated to the criterion that during the last decades has admitted, discussed and consecrated the mistake of law as a defense, taking several cases to explain its consolidation, to point out which crimes are still under discussion, and which factors must be considered when carrying out the normative exercise that allows admitting or not the concurrence of a prohibition error in the face of an unlawful conduct.

Misappropriation on tangible property without a defined form: The case of water, electricity and gas

Marcos Contreras Enos — Fri, 29 Dec 2023 00:00:00 +0000

Can misappropriation be placed on tangible property without a defined form? The objective of this article is to expose the special situation in which assets such as water, electricity and gas are found. The author proposes the existence of a requirement of corporeality or form regarding the object of the action, developing the possible foundations of this requirement through a comparison between Chilean law and German law, along with the detailed analysis of crimes such as unlawful appropriation of water, electricity theft and gas theft.

The legally protected interest as a limit —still possible— between criminal law and administrative sanctioning law: reflections from economic criminal law

Diva Serra Cruz — Fri, 29 Dec 2023 00:00:00 +0000

The main objective of this paper is to determine whether the theory of the legally protected interest has, currently, something to contribute to the discussion on the limits between criminal law and administrative sanctioning law, in the light of modern doctrinal positions that consider that, instead of renouncing this principle, it should be put back at the center of the debate. The main aim of the paper is to resolve the problem in the field of economic criminal law, precisely because in this area there are constant and varied problems in delimiting the scope of application of administrative penalties and sanctions. Thus, the concept of asymmetric accessoriness is explored to demonstrate the relevance of the delimitation between criminal law and administrative law, of-fering a brief exposition of both qualitative and quantitative delimiting theories. Finally, the reflection leans in favour of a substantial difference that, given its resurgence, places at the center of the debate the harm principle as a criterion and material unlawfulness as an examination available in criminal law, but vetoed in administrative law, given its different function.

Karl Binding's legal thinking and the "release of the destruction of life unworthy of living", de Fedja Alexander Hilliger

Juan Pablo Mañalich Raffo — Fri, 29 Dec 2023 00:00:00 +0000

The events of September 11, 1973 and the crime of rebellion

José Luis Guzmán Dalbora — Fri, 29 Dec 2023 00:00:00 +0000