ECONOMIC CRIMES AGAINST HERITAGE.
legally protected: There is a discussion about it. Some authors argue that it is "property", while others say it is "economic wealth." The change in the name of this kind of crime operated in the current code is a reflection of it. Changed the name of "crimes against property" that brought the last code, by "economic crimes against property" taken by the new code.
The authors of the second argument, argue it is not only protected the property, as well as protecting other rights such as possession, use, application, etc. Those in the first reply that while these rights are protected, they are as soon as you have about them a relationship or ownership. The holder, for example, owns the right of possession, it is beneficial owner of the usufruct, etc.
support this latter view, in civil law provisions which state that not only has the right of dominion over material things, but also the intangible property or rights. In the case of our legislation cited articles 669 and 670 of the Civil Code, which effectively establish such a foundation.
This seems to agree with them, but there is a questionable premise in this argument, and is whether the concepts of private law governing criminal law exactly. Our answer is negative. As previously noted, the crime of abortion could not stick to the civil standard that determines when you start the legal existence of a person.
The civil design often varies with respect to the criminal. Sometimes it is wider, others narrower. This is due to the nature and autonomy of the two branches. Criminal law can not be regarded as some authors as a supplement sanctioning of civil legal values, but as an independent branch that while overall draws many concepts of private law, can fit their specific interests and principles, for example, legality, reason for punishment, etc..
The new code has maintained the thesis of "economic assets", which chose as the Code of 1980, which broke with the holding of the Code of 1936, which was that of "ownership" twist opportunity to qualify in his right.
economic heritage is then legally protected. It has been understood as such, the universality actual legal and personal rights of a person. Only refers to the active side of it, as the person can not be the subject of the conduct described in the respective title.
real and personal rights covered here, are valuable monetarily, they represent an economic benefit, or because the person has an immediate relation to a thing (property rights) or because they have only the possibility of demanding a benefit (from give, do or not do), another person, providing an economic nature.
CLASSIFICATION: A first classification can be relevant to the mobile agent. Where appropriate profit-hungry, partially or totally expropriating the taxpayer. In this class are the majority (theft, extortion, fraud, breach of trust, etc.).. The other is of those who act out different mood (revenge, anger, etc..), Resulting in destruction and impairment in the thing, which affects the property owner, not the aggressor increases. Such is the case of "injury."
Another classification depends on how the transfer of assets takes place. The theft is carried out by the takeover, which involves the income of the agent into the orbit of custody of the property to remove. Such a shift in extortion case for delivery to the victim the perpetrator makes an event that occurs under threat or moral violence. In the scam also happens that supply, but because of the error induced on the victim by fraud or deception of the actor. In the fraud by check delivery also occurs, but mocks the victim with a specific fraud in the nature of the negotiable instrument or securities.
in breach of confidence, the movement is checked by the appropriation or misuse of the thing, which has been transferred temporarily to the obligation to restore it or use it in a certain way. In the frauds is through various forms fraud. In the theft by fraud, violence, arbitrary. And finally in damage, said there is no movement, so it falls outside this classification.
CHAPTER I THE THEFT.
CONCEPT: This is the seizure or theft of personal property of others, with the aim of exploiting them. It threatens the economic assets away or separating the good from the sphere of power which is maintained by the owner, possessor or holder number.
and Paul, in Roman law, appropriated the following definition in the Digest: "fraudulent seizure of another's, for profit, whether of the thing itself, and its use or possession, which by natural law is prohibited. "
There is thus a failure of the power relationship of a person on a movable persons, arising from a relationship can be given right of dominion, possession, or simple possession. That person loses power, being physically unable to have the thing, can move material by its action to the agent.
Article 239 This figure describes as follows:
"Theft. He who seizes a movable others, in order to seek profit for himself or for another, shall be liable to imprisonment for two (2) to six (6) years. "
" The penalty shall be one (1) to two (2) years if the amount does not exceed ten (10) wages legal minimum monthly wage. "
Before dogmatic analysis of the figure worthwhile to record our disagreement with the magnitude of the minimum set here. No one can understand how to apply a penalty of one year in prison who steal items of little or low value. ordered a "robagallinas" as they say in popular parlance, to a term that is not only a disproportion, which violates the principle of proportionality, criminal law that it proclaims in its Article 3 °. But beyond the law, they violate the Constitution itself, which states in its Article 11 that there will be cruel, degrading or inhuman. Cruelty does not necessarily inferred from the content and nature of the punishment, but also its lack of proportion, which represents also a plus punitive damages, which exceeds the rule of law.
not be replicated, arguing that in many cases, the perpetrators of these crimes can benefit from the proxy of the suspension of the penalty (Art. 63 of CP) because it does not affect the excess and the asymmetry of the sentence, and it also not all cases have to be sheltered by the Institute. The situation is further aggravated if we consider the closed position in case law, which ignores the practical proof of "necessity" that accompanies many of these crimes, and little or no application to theories like insignificance, has had in our midst.
ELEMENTS: Specify this offense the following:
a) The seizure.
b) movable property of others.
c) Purpose of use.
a) The seizure, means separating who is holding the thing of it. It is not correct to think that this is separate it from the thing, because it can be physically separated from her, while retaining their physical availability. So is a break in the relationship of power, which allowed guard it, and enjoy according to the specific duty it had on her.
The Code 36, spoke of "abduction" to give the idea of \u200b\u200bthis offense to equate the term empowerment. Indeed we believe that mean the same thing about the behavior being studied, but may be seen less strong connotation of the word abduction, which probably decided the legislature at that time to take it to the legal definition of theft, reserving the power of attorney for the crime "theft", as we shall now gone.
Nor does the seizure or theft the only physical movement of the thing, though the action of lead, because it is a shift in the field of power, and physically transferred from one place to another, may still be inside of that orbit. It is for those who enter a residence and meet the valuables are in different units, but fail to take them out of the house for the surprise of its inhabitants. There can not say that the objects seized, although removed from its place. He does not then this element and deeming crime can not be perfect.
No matter the brevity and transience of the seizure. Often the "raponeros" takes flight with their booty to be pursued and achieved, thrown in a place where hardly be able to recover: sewer, pasture, etc. In these cases the only thing was in his sphere of power, few moments, but enough to have lost. Even if he recovers to its title, has been the takeover by the thief, no matter how fleeting it.
Therefore we do not like to talk more about that is legally protected custody, as do the generality of German writers. Mezguer for example says, "for there removal is necessary the creation of a new custody case the violation of the custody of others." To determine the time runs out the action of theft have raised a number of theories that can briefly as follows:
1 °) "Aprehensio rei" or simple touching: This is an extreme theory that has no host ; only referred for academic reasons. Is to consider the crime is committed when the agent comes into contact with the thing, which leads to absurd to talk about theft in cases where the size and weight of the furniture is made impossible for the author even removal.
2 °) The "amotio" who preaches the consummation of theft by physical displacement only thing we saw what is wrong. The master Carrara is one of its main supporters.
3 °) "ablatio" which states that the thing is removed from the sphere of activity of its custody or possession, using this term in a different calendar, which is closer to their common wording. Pessina is one of its main supporters.
4 °) "i / / ATIO" suggests the need of moving the thing to a safe place. I mean that if the thief boot the thing, or leave you unsafe, or hand to an unknown third party must not be understood consummate the crime.
5 °) The "locupletatio" requires that the agent really take advantage of the good stolen. This thesis is located as shown on the other end of the first, requires too much for what it is to protect, economic wealth, through the possession or power relationship with estimable pecuniary goods, which lost for the holder agent regardless of whether or not the enjoyment.
of the doctrines outlined in speaking of the seizure was made of "ablatio." It is she who most suited to the modern notion of theft. Only grasp the thing, or move physically but not out of the sphere of power of its owner, are actions that do not involve seizure or theft, but attempts to do this, so they must stay in the country's attempt to conduct carried out there .
other hand, put the thing in safe place, or actually enjoy, are not necessary conditions for setting the seizure. This is done by the government that the agent has on the thing, even if fleetingly, to be immaterial whether the lost or saved in a safe place, or has used effectively.
b) movable property of others: The material object of the theft is real. A person can not be stolen, may be kidnapped, abducted or detained arbitrarily. However, in the old slave, slaves could be stolen, which is explained by the concept of something that they had.
this material object has a dual qualification. On the one hand, natural to be movable, and secondly, the legal status of otherness. Thus can not be theft or real estate things themselves.
The first qualification, it is only natural, since it embodies the behavior studied in the previous section, the physical movement of the thing, it must be capable of translation, and just have this possibility by defining the property (Art. 655 of CC).
There is a divergence of furniture concept in criminal, civil, excluding the things that being movable by nature, are deemed real property for the accession to buildings (trees) or by the destination to use , cultivation or benefit of property (tools, animals, etc.). For criminal law sufficient to be movable by nature to be indifferent to the circumstances listed.
With respect to intellectual property and intangible assets Ex-Judge of the Supreme Court of Justice, Humberto Dominguez Barrera said in his book "Crimes against the economic assets" as follows, in our view, very come to its senses: "Regarding intellectual property, it is logical that it can not be subject to theft, because she repugnant to the extent of thing. Their defense is enshrined in Law 86 of 1946 (transcribed as appropriate, elsewhere in this book). Nor are, of course, intangible assets (personal rights or credits) to referred to in Articles 664 to 688 of the Civil Code. "(BARRIER Dominguez, Humberto." Offences against economic wealth. Edit. Temis, Bogotá, 1963, pp. 79 and 80).
has been discussed whether the electrical power may be subject to theft, by their nature do not fit into the classification of tangible property in solid, liquid and gas. Yes we felt force of the Code in 1980, it is an estimable well economically, to be transferred, in addition to physical science in its modern theoretical developments have pointed to energy in general as a form of matter.
in the design of the Colombian Penal Code of 1978, was read the second paragraph of Article 499 which establishes the offense of theft: "For the purposes of criminal law are also considered movable electric power and any other that has any economic value. "
was not necessary, for overstatement casuistry earlier provision, but is worth quoting for the expression of thought is the legislature, which reflects the trend of the doctrine and case law addressing this particular problem.
The new code, the problem is solved with the new offense of "Embezzlement of fluids, stay in the frauds, the sixth chapter of crimes against economic wealth. Prescribes Section 256, such as financial fraud, possession of power, water, natural gas or telecommunications signal, by any means, referring explicitly to change control systems or devices counters. It is clear, therefore, that in effect this new code, these fluids will be material fraud, not stealing, when they check on illegal appropriation behavior.
c) Purpose of use, subjective ingredient of this offense, denotes the order that must exist in the agent. It's called "animus profiting, or profit that you must move the behavior of the active subject.
If there is another purpose, for example, that of revenge or to satisfy the envy, destroying the thing for which she takes over, there is no study the offense, but another, in this case the damage.
The Code of 1936, Article 397 containing the figure of the theft included the words "... without the owner's consent ...", which was absurd, because if any, would the delivery and form of transfer of assets, thus defeating the seizure or theft of the thing.
QUALIFIED THEFT: Article 240 contains a series of circumstances that qualify the robbery, aggravated. The first one is violence against persons or things. Up the code 36, that the seizure was made mediating this circumstance, the crime was independent of "theft."
The Code of 1980, and such offense disappeared, leaving the act in question reduced to an aggravated robbery. Collect the legislature thus doctrinal criticism did not find more reasons to become a separate crime, aggravated robbery with violence. And the critical jurisprudence, for the serious procedural impact of this separation, which entailed then frequent nullity by reason of the erroneous legal characterization of the infringement, by various interpretive criteria usually occur in the instances.
violence on people or things: violence has been considered as the force that prevents or overcomes the resistance of the victim (the people), or that overcomes the resistance of things and their means of defense (about things).
violence on people can be physically and morally. The first is what occurs in that plane, leading to a stranglehold of the assailant on the victim. While morality, are the threats (real promise of a future evil "), which bend relatively, by intimidation, to it, forcing him to deliver the thing or leave it off.
The second paragraph of Article under review, specifically increases the penalty for larceny committed with violence against people. That sentence, four to ten years in prison, its main purpose, that those responsible for such behavior can not obtain a conditional suspension of execution of sentence (Art. 63), for exceeding the limit laid down therein.
At this point it should be noted that the hypothesis of "raponazo" sudden tiramiento the portfolio of a bystander, should not be categorized as aggravated theft, if not accompanied by additional violence, the displacement necessary the object, the hand of the victim to the agent from the debt. Behavior fits the crime of petty theft, but aggravated by the circumstance of paragraph 10 of Article 241 of the CP
one thing for someone to divest itself of property by use of arms, exposing other legal interests, of even greater importance (life, personal integrity), and another is that minimal resistance is overcome natural order of things, without attack pluriofensivo legal interests, as in a simple "raponeo", in which the author simply pull the good, the hand that holds it. We believe that one can not equate the actions of armed gangs who walk stripped of their vehicles people, or stolen personal belongings, by the pressure of a firearm in their head, with the street urchins, children and adolescents on the street, walking pulling ladies handbags. In those cases presents the life and integrity of victims, and even third, results that can occur easily, given the unpredictable reactions of each other, whereas in the past, there are usually those risks, and before On the contrary, often, children are exposed to early and disproportionate reaction, and even the collective lynching. The thesis of petty theft for 'raponeo', then is not something that is apparent only on the nature of the facts, but also of powerful criminal policy reasons and fairness.
violence on the things, obviously, can only be physical. I could not ever intimidated an object. It is unusual force, although this criterion all of normality / abnormality, is necessarily relative. Taking the concept that normal force is the exerted the holder or possessor of the thing, we do not always those right-holders are not always careful with her things. Anyway, is a rough criterion, and violence against things must be sought above all, common sense.
The third paragraph of article 240, included as a form of the aggravation of violence, when she is immediately following the seizure of the thing and has been used to secure the product from the debt or the impunity of those responsible. Under these assumptions, the theft has already been consummated, and violence is presented later to secure the product or impunity (recognition, apprehension), the time point of immediacy can be translated as meaning that there is no discontinuity between the perfect time of the theft, and one in which violence is exercised later, in other words, a successor to another time.
If violence against persons, resulting injuries, these concur with aggravated robbery. If exercised over damage are things we can not say the same, because we believe that the damage is absorbed by the theft, on the grounds that both crimes the same good legal protection, however the theft and injury, are diverse legal interest.
CONDITIONS OF EXPOSED or less: The second paragraph of that article reads: "2. By placing the victim in a position of helplessness or inferiority or by taking advantage of such conditions."
Terms of helplessness or inferiority, are those that preclude the defense of the victim, either in whole or in a way that it is serious. Such conditions may be temporary or permanent.
as unconsciousness, intoxication, sleep, hypnosis, gagging, etc. As permanent disability, insanity, senility, etc..
In the latter what the agent is usually to take advantage of them, while those may well seek to take advantage as the victim in such situations. Regarding the latter, are typical cases of "scopolamine", a substance that is poured into the drink of the victim, to procure the unconsciousness, which may extend significantly after plunder, and even have serious consequences on their health.
striking, and constitute a case for the history of infamy Borges, cases of looting of the victims of disaster (a plane that falls, an earthquake, a car accident, etc.). . They come ready, the 'helpers kind' that requisitioned pockets, remove jewelry, and leave with bags and other belongings that the occasion permits, showing an attitude that demeans the human condition. These cases fall into this ground, but it also applies an aggravating circumstance of Article 241, paragraph 1, "taking advantage of disaster, accidents or common danger" there is no violation thus, the principle of non bis in idem, because they can not identify the two situations, the aggravating conduct is not taking advantage of the condition of helplessness or inferiority, it is even possible, that victims can exercise their defense But she did, moved by the solidarity of working with the other victims of the calamity, or confused by the surprise and shock of fact, cease to do so.
PENETRATION OR STAY ARBITRARY, MISLEADING OR ILLEGAL IN PLACE ROOMS: The third paragraph expresses as follows: "3. By staying penetration or arbitrary, misleading or illegal in inhabited place or in any branch immediate, although there are no inhabitants.
additionally here is protected room, where he seeks the quiet of meditation and the right to privacy and family life.
not only with respect to who enters the abnormal forms related there, but also to those who pay regularly, with the consent or acquiescence of the inhabitants, remains after one of those ways.
Arbitrary is defined as no reason; misleading through of fraud and illegal schemes or secretly, surreptitiously.
Dependencies are immediately adjacent to inhabited places functionally dependent on him, like patios, garages, etc.
ESCALATION, false keys, INSURANCE VIOLATION: The numeral 4, and finally says: "With scaling, or stolen or false key, pick or similar instrument, or violating or exceeding electronic or other similar securities."
It is the reason for the aggravation circumvention of protective barriers or obstacles that the holder of such right, has been to secure their property, while the greater skill and agility that reflect these "modus operandi ". Scaling overcoming obstacles is quite high, requiring a separate effort to simply move, using ladders, loops, hooks, etc.
has been said that the false key is not intended by the owner to open and it's intended, but used by anyone not authorized to do so, sheltering the situation who escapes. We therefore believe that the concept of false it's stolen, so no repetition is very clear in section being tested.
has fallen short of the new code, not including new keys or keys, which benefit from many goods today. We refer in principle to magnetic or punched cards, which allow access to the ATMs of the banks to open doors with punch cards, the devices remotely unlock vehicles, etc. The assimilation of these conventional means to paragraph 4, will run into the discussion about the need for limitation of criminal law, particularly binding when the defendant worse off, because it contradicts the principle of favor laughed. The discussion can move to the concept of "electronic or other similar securities, the same numeral 4, in which it can be argued that it is a maturity of electronic security.
The pick according to common sense is of a wire bent into the tip or hook with which you can open the latches. Reflected in their use, skill, virtuosity it becomes if we consider the speed and subtlety with which today is open locks of cars and houses.
The electronic or similar securities, such as electrical, mechanical, etc., Industrial developments in their generation caused by the crime are defensive measures, that demonstrate the ability to be fooled offensive player, deserving of greater punishment. It is very instructive for the case, electronic alarms are enabled in the vehicles or houses or factories. If the 'squeegee' vehicle prior to or simultaneously disconnects the vehicle is seized illegally, he incurs the qualifying circumstance of robbery.
Act 813 of 2003 in its Article 2, Article 240 amended, supplemented with a clause that contains a special skill when the theft was committed on motorized means, or their essential parts, or merchandise or fuel carried in them. Further aggravated sentence if he commits the act of this kind of material object, is in charge of custody.
In the scheme of the Criminal Code, which made the legislature was to relocate the causal aggravation 6a del hurto, a circunstancia de calificación, expresando con ello su mayor preocupación por este tipo de atentados, a los que quiso oponerles una mayor sanción. Tuvo en cuenta el incremento de esta modalidad delincuencial, realizada sobre automotores, y el fenómeno de desmembración (deshuesamiento) masiva de vehículos robados, y de receptación institucionalizada en zonas públicas de las grandes ciudades, con la consiguiente afectación del negocio legal de autopartes y de las aseguradoras.
Se tiene en cuenta también, en esta modalidad, la mayor exposición pública de estos objetos, lo que los hace más vulnerables a los atentados patrimoniales, y su naturaleza móvil which makes navigation easier target.
With regard to the Code of 1980, restated the circumstances, beyond the concept of "unit mounted on wheels," to exclude hypotheses of different entity and category (skates, skateboards, etc.)..
The qualifying not only applies to "jalamiento" automotive, but also "burglary" but the latter determines the law that are essential or important parts, valuation is in large part to judicial practice, but can anticipate excluding bezels, pens, badges, etc..
CIRCUMSTANCES Aggravating: Article 241 brings a series of fifteen aggravating circumstances as petty theft, such as qualified just studied. Then casting a brief each.
/ "." Taking advantage of disaster, accidents or common danger "
Evidence dehumanization and extreme antisocial feeling. It is surprising for its insensitivity to the tragedy and their abject opportunism. When a person is a victim of a calamity , is in a state of shock, confusion and extreme distress, not to arouse in others, but feelings of solidarity and attitudes of help and collaboration.
are not unusual looting of vehicles and injured survivors, dying or dead. Calamities such as earthquakes, floods, landslides, fires, etc., Are exploited to deprive the victims.
believe that the causal, it can be applied on those who after the tragedy, go to 'work' in the help they provide to victims, when they are taking over, for their personal benefit, property donated or given to any degree, bound to these victims.
2a. "Building the trust by the owner, possessor or holder of the thing in the broker "
In this case the agent has access to everything under one function to be performed, but not for any title that gives some autonomy in their management. Abuses the confidence of the title, the possession of the thing, which has access, making it easier for divestment, thus deserving greater punishment.
behaviors are much repetition in our country, thefts made these conditions for domestic workers, as also the store clerks, the messengers to whom they deliver parcels to carry. As is, they have access to certain goods, because of their work, but those still under the physical layout of the holder.
Given the semantic connotations of the cause, we must be careful not to confuse the case of theft aggravated by the use of trust with the crime of breach of trust, enshrined in Article 249 of the CP Although difference between theft and breach of trust, it looks more spacious, in consideration of the latter offense, you can enter from now, that the theft, the active subject has no interest in the well, while the abuse of trust has any right, title not derived from transferring ownership, why is punishable under the latter offense.
3a. "Using the activity of unimpeachable"
On this circumstance is true what is said in the study of the circumstances that increases the penalty for the murder, which also takes in paragraph 5 of article 104. However, we reiterate the reasons for the aggravation, stress relieving abuse by the author of an inferior status, which should motivate more respect and solidarity, rather than use, with consequent exposure of the most cherished values of the person, life and personal integrity.
In these cases, the exposure is greater, than one who can live the direct perpetrator of a theft, to the extent that the unimpeachable, have trouble understanding and behavioral assessment, putting him at a disadvantage to aggressive reaction of the defense, the taxpayer theft. In these cases, it raised the verification of a crime of culpable homicide or injury, the head of the unimpeachable who used instrumentally, when it is killed or wounded in defense development pursued by the victim of theft. If the author of theft arises eventually these results, and eventually assumed as a result of their action, assumptions will be fraudulent.
In these cases, not only unimpeachable instrument of action, but also a victim of it being trampled upon personal dignity.
4a "For someone disguised as alleged or claiming, or pretending false invoking authority or order of the same"
deception per se are paving the path of action. They should not determine the delivery of the thing, because then we must think in the scheme, but allow the agent access to good, like when someone posing as an employee of the utility and claiming make a deal gets the entrance to the house where an object is subtracted. There are also cases of criminals who assault prior to a provider of home products (foods, markets, drugs, etc..), Then posing as envoys of the respective businesses, having access to the dwellings, to consummate the major theft. Here is a contest of economic crimes, because usually the first assault is to take over the uniform and emblems of the royal messenger, and even tend to also seize their bikes or vehicles.
are common today, assault with masks, which allow a greater sense of safety actions the agent. The old mask has become an icon of traditional thief.
also for which pretend to be authority, or false claiming of the same order, for example, which has a raid. For simulation of authority, no contest to the offense of Article 426, which establishes the crime of "simulation of investiture or charge" as an offense against public administration. There is not, because the aggravating is collecting simulation behavior, presenting a violation of the principle of non bis in idem, to punish the two behaviors in the contest. Another thing is that the simulation of investment or position, will extend more there, the attack assets, acquiring in this case a range tactics, which would make it susceptible to criminality as a crime against the public administration.
5a. "On passenger baggage during travel or in hotels, airports, docks, terminals, ground transportation or other similar places"
Here is what is aggravating underlying the use of the parlous circumstances of travel, and the most damage producírsele who usually does, by separating its headquarters where it can overcome the situation better. Certainly, the traveler is a vulnerable person, which must be pending on several things at the same time, holding or caring for your luggage.
not enough to be given on the physical object, "traveler's luggage, but also has to satisfy the condition that it is in the course of a trip, or while the luggage in one of those typical places frequented by travelers, airports, hotels, land transportation terminals, customs, roadside restaurants, etc. In any case, must look at the more vulnerable it means to walk on the road, and the largest exhibition of personal belongings in sight and public outreach.
6a. "Over half a motorized or important parts, or merchandise or fuel carried in them ":
This ground was converted into a qualifying event of theft (Art. 1 of Act 813 of 2003). His comment was recorded in that venue (Art. 240).
7a. "exhibit on the public trust by necessity, habit or destination"
here is protected objects should be left in public places, being exposed, without special surveillance. This can happen for one or more of the reasons that states once the norm.
By necessity, for example, are left hydrants, traffic lights, lamps. The first to stay the hand of the firefighters, the latter so that they can regulate vehicular traffic and pedestrians, while the last, to light the way of pedestrians, and for additional safety reasons.
By custom we can cite the examples of statues and public monuments that have been placed in streets, parks, plazas, gardens, etc.
By destination we can cite the case of clocks placed in the green areas that have not customarily been put there not by necessity, but as a social service aimed at informing the time and other information to the community. Public phones, billboards, are different.
8a. "On about rural land, seed, soil separate products, machine or instrument stopped working in the field, or head of cattle more or less"
Protecting personal assets of rural land is more difficult for its owner by the greater length and corresponding cost, as opposed to urban land. In good part is that these assets are more exposed to the public.
Among those assets is highlighted by its livestock movement difficult to constant surveillance, to while it facilitates their transfer into the action agent. The theft of these goods is what is known as cattle theft. Examples of cattle, we can mention the cattle, horses, the mules, while the minor, we can mention the pigs, goats, the sheep.
With regard to the possible competition with the offense of Section 243 (alteration, defacing and theft of cattle brands), ignored outright, by the subsidiary character of the latter figure to enter in your text "provided that the conduct does not constitute another crime."
9a. "Instead deserted or lonely"
It is a fact exploited by criminals, which allows a more effective action, including a greater likelihood of impunity for the difficulty in identification.
Night, was deleted from this cause, for the obvious reason that because the world is not so in the shadows, as when in the first codes were drafted this circumstance.
10th. "With skill, or taking away things or objects that people carry with them, or by two or more persons who may have been met or agreed to commit theft"
one hand points to the skill, or ability in action. As an example how to steal the pens by skilled thieves who used a newspaper to engage the cross with its owner on the street, pulling from his pocket without it, many times, any stimulus perceived.
It also enshrines the "raponazo" typical of a street in our country and juvenile delinquency. And the competition for people, who may eventually go with the conspiracy if there is also a framework Convention (Art. 340).
As recorded in the heading of qualified theft, the 'portfolio' or 'raponazo', these assumptions, it is not theft qualified, except that further violence is used, which involves the simple displacement of the object, the hand or arm of the victim to the active agent of the crime. The same aggravating factor under study is a demonstration of this thesis argument, accept the opposite, namely, that of the raponazo constitute qualified theft, would renounce the aggravation of the outburst, and the fact it would have been recognized as an increase in penalty not being from a further increase, without infringing the prohibition of double jeopardy.
11 th. "In public or open to the public, or public transportation."
This aggravation is based on the increased exposure of the good, since it is more accessible to the public. It makes a difference in public or open to the public, because it is not necessarily guide the administrative law concept of a public body, but the concept of establishment where the public has access, either because it is actually public (state public entity) or because, being private, is open to the public indiscriminately (theaters, churches, private hospitals, etc.). Not apply, for example, for selective institutions such as clubs, condominiums, etc., Without the expense of those places that can be applied other aggravating or qualifying.
As public transport is a recurring scenario of economic attack, not just the theft of business 'portfolio', but now caddy again, acts of violence (robbery) collective, committed by gangs common. This is a new causal relation to those contained in the above code.
12 °. "About effects and weapons for national defense and security"
criminal protection is reinforced by the quality of the material object that contains a public interest, since the mission of weapons and effects in question are intended to defend the collective interests of national security and its defense.
weapons for national defense are those that hold the organs of state in charge of national defense, and consequently, those with the Armed Forces. They can be weapons of defense, but belonging to that institution, or prohibited weapons, depriving the armed forces or war (tanks, cannons, airplanes, etc..), Provided they have not been authorized to display or collection.
effects for the safe and natural protection, are all those instruments, that without weapons, are intended to support defense work, as radar, infrared lenses, lasers adapted to helicopters and warplanes, etc.
The quality of the material object, which is aggravating this does not allow for the case of civil or particular, for any reason, the competition moves to the military justice system.
13th. "On the assets that comprise the cultural heritage of the Nation":
In times when the public has no mourners in public corruption that has dominion over our society, it needs protection of the public, not just as opportunities for political participation, or as physical spaces for public use, but also, as this cultural heritage, which contains much of the memory and history of a nation.
This heritage is generally inventoried by the State institutions, ensuring the preservation of this heritage, what does not, for given cases, judges can reasonably consider that a property not inventoried, part of this cultural heritage.
14th. "On oil and its derivatives when they derogate from a pipeline, pipeline, pipeline or immediate sources of supply"
In this cause, as in many others, strengthening the criminal protection, the largest exhibition of the goods, and of course, the level of importance to society. This is nothing less than vital energy resources to satisfy basic needs of communities and economic development.
The increased exposure is evident in the public lying-sharing networks such minds energy. In this worsening scenario, we act as a reality of attacks on property, in which they operate organized groups to illegally extract these products, and distribute on the black market.
15th. "On nuclear materials or radioactive elements"
In this case, the aggravating becomes dangerous nature of the property on which the action falls. As in the case of paragraphs 11, 13, 14 and 15, it is of new grounds. It comes with the times in which nuclear and radioactive applications have reached advanced developments. But it also comes with new variants of crime, which opens a black market for these products, necessary for weapons development and the offensive capabilities of organized crime.
as also gravitates reason for the aggravation, the danger that handling and exposure of these materials involved. It is known harmful effects to human health by radioactive contamination, derived from single emissions or radioactivity of these materials. Hence, the importation, trafficking, manufacture, possession and use of nuclear weapons is criminalized in Article 367 of the substantive criminal statute.
PUNITIVE ATTENUATION CIRCUMSTANCES: The Art 242, brings two mitigating circumstances of theft, one concerning the "theft of use" and the other to "theft between co-owners", figures that were part of the Code of 1980, Articles 352 and 353 respectively, with the appearance of special criminal types.
Now, the legislature of 2000, reduced to its proper expression of extenuating circumstances, as part of what we propose in the first edition of this work, concerning the so-called theft of use. The attenuation is certainly significant, as it passes from the deprivation of liberty, pecuniary penalty of fine.
When theft is non-permanently expropriate the right-holder of the thing, we are faced with the first cause of attenuation, provided it is restored within a period not exceeding 24 hours. If overflow this term, the conduct is not mitigated, deserve a custodial sentence.
When you have restored the thing, material object of the theft, within 24 hours of completion from the debt, with "serious damage or deterioration, the attenuation should be less, but the wording of subsection seems incorrect, since it provides a basis on which to make the discount.
AMOUNT IN THEFT minimized with: No more trouble recognizing that the amount is not determined by the value of the object used, but the use value, home to this concept, both the normal deterioration as derived in damages for misuse. To hold otherwise is an obvious injustice, because the extent of injury heritage that we have tried to cause is lower than the value of the object.
Apparently the matter in controversy does not have much impact, but this is not so, because the amount falls in this case very important aspects, of one side decides to competition and the other, can determine increased sorry for the concurrence of the specific cause of worsening economic crimes referred to in Article 267-1 of the CP
Condueños THEFT FROM: Resolves the issue of whether law can be subject to theft of property held in condominium so yes, what and the doctrine and jurisprudence had been inclined to respond in this way.
Article 242, paragraph 2, provides that fact as grounds for mitigation:
"The conduct was committed by a partner, owner, community member or heir, or common thing indivisible, or divisible common, exceeding its quota part. "
The mitigation includes the rating of the active subject, who must be a member, co-owner, community member or heir, but also requires that the conduct is given on a material object that is indivisible common thing, or a common thing divisible exceeding their share.
When the seizure is given on the common good indivisible, the amount of theft is defined as the excess of the fair share fee to the author. Obviously if you only take what corresponds to their share, no offense, to be atypical, however it is not fulfilled the essential condition of alienation that structure the offense of theft. It is not even, do not implement the mitigation, but there is no theft, and therefore the issue of aggravating or mitigating circumstances, is irrelevant.
ALTERATION, THEFT DEFACEMENT MARKS AND LIVESTOCK: Article 243 says:
"impairment, disfigurement and theft of livestock. Which alters, defaces or supplanting foreign livestock brand or mark which does not belong, shall be liable to imprisonment for one (1) to two (2) years and a fine of ten (10) to twenty (20) statutory monthly minimum wage , provided that the conduct does not constitute another crime. "
This figure does not require verification of a result that injures the economic assets of a person. Just that alters, defaces, or dial won impersonate others, regardless of the intended purpose and less if he takes over.
this provision is a clear interest in countering the "rustling" by punishing an act prior to the theft of cattle, that evidentiary problems can escape criminal liability. However, we believe strongly criticized for lacking the technical figure and excessive casuistry, with its natural place rather of violations.
Since this is basically an act preparatory to an attack asset, the standard is set as an extra or secondary, so that if it continues in the act intended, is this the one that is punishable and not the Article 243.
Formerly it has been regulated as a misdemeanor conduct. Pérez Pinzón, refers his background in Law 48 of 1936 on 'thieves' (possession of marks deformed, canceled or altered if the author had a history), or as a "dangerous state" of the Decree 14 of 1955, as 'antisocial behavior' of Decree 1699 of 1964, and finally, as a misdemeanor under Article 54 of Decree 522 of 1971. The Penal Code of 1980, amounts to the category of crime that keeps the code 2000 (PÉREZ, Pinzon, Alvaro Orlando. "Special Criminal Law, Bogotá, External University of Colombia, 1985, pg. 372.)
THEFT
Starved: The universal doctrine has used this term to indicate where the offense is motivated by hunger. Famished, Latin "Famelicus" means hungry.
remain sheltered by the proof of "necessity" and not only in the matter of food but also clothing and medicines, and any right track to get these, counting from then with the seizure of such articles , occurs in the situation of actual or imminent threat to a right (to life or personal integrity), not otherwise avoidable, the agent has not caused intentionally or recklessly, and has no legal duty to tackle , as required by Article 29 of the CP, in item 5 °.
Here we must draw attention our judicial means, in very few criminal cases come to recognize the proof, despite the obvious economic crime of necessity, a means of large masses such as ours produces impoverishment. While all this crime may not necessarily be located in states of need, if a large proportion of them, the precariousness of the investigations, the lack of an effective defense of the indicted, is not even raised, having been in reality .
These defendants deny the fact, believing that they have committed crimes, hampering the search for evidence of excusing Fig. There is also a judicial trend research typical structure, ignoring what should be a priority in these crimes hypothesis of the dispossessed, and that is the major cause of exclusion of illegality. Not to add the ideological predisposition which also covers many judges, and that stigmatizes the poor criminals in many cases driven by inexorable natural law of necessity, whereas in the economic offenders ambition is a soft treatment, which also play distortion mechanisms in the implementation of the law. The story of Jean Valjean in "Les Miserables" by the great Victor Hugo, is not over.
Article 430 of the Code of 1936 contained an express statutory formulation of the situation:
"It is exempted from liability to execute any crime against property taken by urgent necessity of providing for their subsistence or clothing, or your family, when there has been lawful means to meet the needs, provided that simply take what is necessary to remedy, that his personality is not socially dangerous and not to exert violence against people. "
The above provision was not reproduced in the Code of 1980, for their anti-technical redundancy, although there are several differences between the hypothesis there contained and the figure of necessity, then gathered in Article 25 paragraph 3 °.
These differences appeared to restrict the scope of the justification for crimes against property, not for the causal interpretation that the general was not particularly moved by the defense.
these distinctions important to point out that the violence on hyperbolic reflects the valuation of private property against the fundamental rights of life and personal integrity, who are committed to the pressing needs of speaking the norm, not being fair to the defense by failing to condition exercise violence.
Moreover projected the figure repealed the Code recognized the dangerous position of 36, led to the stigmatization of conventional criminals apply any repressive actions of the state, knowing that the rule of necessity is irrelevant status Author's personal.
Substantive Criminal Code of 2001, introduced an important provision 56, which shows an attempt to correct this situation. This is a generic mitigating extraordinary, reaching reduce the sentence to one-sixth of the minimum, when "made a punishable offense under the influence of deep marginal situations, ignorance or extreme poverty, as directly influenced the implementation of the criminal offense and have not sufficiently material to exclude liability
...". We can only celebrate the advent regulatory because it is clear that in a society where large segments of the population, have enormous structural problems to meet their basic needs, knowledge and patience of the State and of society itself, not legitimized a ruthless and draconian criminal prosecution. These sectors are suffering from the same criminal process that can not defend themselves because they can not afford an attorney, should be reduced to the symbolic defense office, or the limited performance of public defenders.
The mitigating mention, although it is generic, it seems designed primarily with economic crime of necessity, and in that sense, there can only be applied to crimes against economic wealth, but to crimes different legal status of protection, but are determined by the marginalization and poverty, eg, coca cultivation by poor peasant families, or the carrying or possession of drugs to meet the urgent survival needs.
This does not, for judges to fulfill their duty comprehensive research, asking not only what is unfavorable to the defendant but also in favorable. The grounds for justification of the event, are in the latter situation, given the structural conditions of poverty in our country, not always an excuse of 'evil' offender, but can be a painful daily reality.
Finally it should be noted that if there was a rule for considering the drama of who acts in a state of anger and intense pain, more so should be a standard mitigating those acting under the 'kicks' that da hunger, and visceral pain of seeing the suffering and hear the cries of their offspring devastated by hunger and malnutrition.
FAMILY HOME OR THEFT: also referred to the doctrine that occur between relatives, in cases of necessity, therefore should be left under the cover of "necessity."
However, since the form of information, transcribe the text of Article 431 of Criminal Code 36.
"shall not be liable, without prejudice to the respective civil actions, which commits the facts about this title at the expense of legally separated spouse, an ascendant or descendant or a related online directly, or brother or sister, provided it has simply taken the essentials for your needs and your family. "
As shown is a kind of" necessity "as extended by no requirement of gravity and the inevitability of risk, causation or own it, nor the duty to confront it for professional purposes.
The disappearance of this special exemption from legal texts, the criminality of theft and other crimes against economic wealth between relatives wins field, as they can not be located in Article 32, paragraph 7 of this code, but partially reduced in the case of thefts carried out between spouses and conditions of Article 242 (theft from co-owners), the attenuation punitive.
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