The Positive and negative elements of crime Constitute a set of six positive and negative requirements that must exist so that criminal activity can be classified as a crime or not.
Although the existence of a crime is essential to the presence of a party that executes it and another that is affected, in addition to an object on which the criminal action falls, it is essential that the crime meets certain positive requirements so that it can be considered as such.
Otherwise, when negative elements of the crime are found in the situation, the act goes from being against the law to being favored by it.
In the first place, it is necessary to begin by defining what is the crime, and can understand by it the fact of committing a physical or moral fault, or a crime that undermines the legal and other human rights of other citizens.
It can usually be defined as an infraction of the law of the State, and which results from an external act of man, whether positive or negative, considered morally imputable and politically harmful.
The positive and negative elements of crime are part of the so-called"Crime Theory", which consists of a categorized and sequenced ordering of all the requirements that must come together so that the act can be considered as criminal or not before the law.
These elements constitute a useful tool for all criminals, who, when determining whether a crime has been committed or not, should only take into consideration the presence of the positive or negative elements of the crime.
These elements indicate the course of action to be followed at the time of judging the person who committed the act, being within the scope of criminal law.
Elements of crime
The positive and negative elements of crime constitute the components and characteristics that make up the concept and the notion of crime under the law.
Hence, the positive elements are the requirements that must be met for a crime to exist.
On the other hand, the negative elements come to be the contradiction of the positive aspects of the crime being able to emphasize that the mere presence of a negative element brings the nonexistence of a positive one, making that the crime can not be cataloged as such.
Positive elements of crime
Action or behavior
It refers to the accomplishment of the act of crime, that is to say, for a crime to take place there must exist a person who carries out the activity, the fact, or the criminal action.
This behavior is manifested by means of various actions that man performs, coupled with the presence of a criminal moral will, and can be carried out in two ways.
The first is to carry out an action, while the other may simply be the choice not to act and stop doing some activity.
For this positive element to be considered it is necessary that four elements converge:
- The externalization of the will of the individual to carry out a criminal activity
- The material realization of criminal activity, that is, that the materialization of the will of the individual can be visibly observed
- The existence of a visible result originated by the action that was carried out
- The existence of a causal link between the activity carried out and the results.
Antijuridicity
In order for the crime to be considered as such, the action or act must go against any legal precept established in the norm.
That is, it is essential that the activity carried out goes against the law.
Culpability
For the individual to be classified as guilty there must be a close and clear relationship between the author of the conduct and the action performed.
In the same way that the author must have will and knowledge of fact.
Typicity
This positive element comes from the common phrase"There is no crime without law", hence it is crucial to consider an activity as criminal that this is indicated in the law.
That is, the fact must be recognized and be defined as a violation of the law, since otherwise it can not be judged by it.
This element refers to the famous"legal gaps"when not to be in the given standard can not be judged.
Imputability
This element is defined as the ability to understand criminal law, ie the author must be aware of the act committed, hence implying that the person has mental health and psychic ability to act in the criminal field, namely against the law.
Punctuality
Once the above elements are defined in the act carried out, it is necessary that the crime be punished.
Hence, when the conduct is worth it, the criminal fact is confirmed and the author deserves some penalty or state threat of imposition of sanctions.
Negative elements of crime
Absence of action or conduct
This element is based on the principle that if there is no conduct that motivates the crime, or if the action or the criminal act were not performed can not be spoken of as a crime.
If the subject does not have the will to commit a crime, however, he performs the action under the presence, for example, of nervous alterations that are not consciously perceived, or through sleep, sleepwalking or hypnosis, the act can not be considered as a crime.
Absence of antijuridicidad
If the action taken is not against the law, it can not be considered a crime.
Innocence
If it can not be demonstrated that the subject is guilty of carrying out the physical action and having the physical and moral will, he can not be legally sanctioned.
Absence of typicity
If the activity in question is not defined in the legal framework as a crime, it can not be judged as such.
Imputability
It refers to the fact that if the individual did not have the full physical and mental capacity to acquire awareness and to understand that the action was contrary to the law and the norm, he can not be considered guilty and the fact should not be judged As a crime either.
Excuses absolutory
If the author succeeds in exposing an excuse, which may be recognized under the law, the punishability of the offense must be eliminated.
The absolutory causes are personal circumstances that prevent the application of the sanction.
References
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