El error de prohibición que recae sobre los presupuestos que integran las causas de justificación

Abstract

The present work has been developed in the career of Jurisprudence of the Technical University of Machala with the theme: "The error in the factual presuppositions of self-defense as a form of error of prohibition in the theory of crime". The structure of the work consists of three parts, the introductory, the development and the conclusions, elements of an academic essay, and with the base of 15 scientific sources of electronic journals as basic bibliography. This type of research has been very novel for us who have been accustomed to investigating only in physical libraries. The basic premise on which we had to work is a practical case in criminal matters, whose variables would become the points of discussion of the investigation: Juan, a repeat offender, was involved in three murders, threatening Pedro with death. Pedro always carried a dagger and a gas pistol. On May 9, 2015 while Pedro was talking on a cell phone, Juan approached him from behind and placed the two fingers on his back simulating a firearm and told him your damn time had arrived! Pedro reacts immediately and gives him a stab killing him immediately. In this way the issues of self-defense, error in criminal matters, and of course the theory of crime appeared prominent. The legitimate defense is a legal figure that we place in the third step of the theory of crime, but not its negative phase, but rather as a causal exclusion of the antijuridicidad, that is, the legitimate defense justifies the development of a typical fact. Death, is par excellence a fact relevant to criminal law, and around this behavior there are several criminal offenses that sanction it, such as homicide, but death in legitimate defense of one's own life or that of third parties is justified. This figure is fully known, even by people not very close to the study of law, society in general. Now, that not every reaction to an aggression constitutes legitimate defense, since for that purpose the law and the doctrine have identified clear presuppositions that allow to appreciate if the defense reaction is legitimate, to the point of justifying having killed a person , and that there is no criminal consequence. In the theory of crime, we find the error in its expressions of type error and prohibition error, the first form is located on the level of typicity and constitutes the ignorance of at least one of the elements of the objective type. On the other hand, the error of prohibition is located as a cause of exclusion from guilt, being precise, displaces the conscience of illicit that is one of the necessary presuppositions so that the author of a fact can be reproached for his conduct. As we appreciate, in the case of study, we are located between the unlawfulness and the culpability. The birth of Criminal Dogmatics is based on the distinction between the unlawful and the guilty, the former having an objective content of injury to the juridical good and the latter a subjective one, of injury to the duty when one was able to act otherwise. It is a basic distinction for the birth of legal-criminal science (Gòmez Pavajeau, 2010). The error of prohibition can fall on the law or on the budgets of self-defense, and as we learned in our career, in the university classrooms, the offense constitutes only if each of its categories is fully identified; If there is an error of prohibition, the action is already typical and unlawful, it is not guilty and therefore there is no crime. In the present investigation, these legal institutions have occupied a determining space, since with the necessary clarity we have been able to arrive at the conclusions on the proposed case, so that we can affirm with certainty a position. To develop the research, the scientific sources of indexed journals have been very valuable, easy to use and understand, highlighting that the scientific community is working on different topics in each of the branches of law, which facilitates the development of research projects. this type. I am sure that the objectives proposed by both the researcher and the Institution have been met.