CHAPTER V THE ABUSE OF TRUST
CONCEPT: It is the appropriation or misuse of a movable persons entrusted or delivered to the agent for a title is not transferring ownership.
is a disappointment to the estate of a person who legitimately expects the reinstatement of his movable property under certain conditions, being frustrated by not returned to him (appropriation), or damaged by reintegrársele the misuse that has made him (use).
has two modes, then: the ownership and use. Being punished mostly the former, because it violates the assets in the total value of the chattel disappointed, while the latter does so only partially.
LEGAL DESCRIPTION:
"Article 249. Abuse of trust. The profit is appropriated by him or a third, movable others, which has been entrusted or delivered by a non-title transferring ownership, liable to imprisonment for one (1) to four (4) years and a fine of ten (10) to two hundred (200) minimum wages monthly legal. "
" The punishment shall be imprisonment of one (1) to two (2) years and a fine of up to ten (10) statutory monthly minimum wage, if the amount does not exceed ten (10) wages legal minimum monthly wage. "
" If there is no appropriation but abuse of third party injury thing, the penalty is reduced by half. "
ELEMENTS:
a) Title not transferring ownership.
b) movable property of others.
c) Ownership or misuse.
a) Title not transferring ownership, also understood as a title poor, which implies recognition of the domain in another, and consequentially, the obligation to return the object by the would abuse.
establishes a legal or de facto relationship between the offender and the owner, owner or legitimate holder of the property, through which has been entrusted or delivered to him good.
That relationship involves a legal tenure by the abuser, so it is not enough simply supplying material, such as when the lady of the house appliances delivers the toilet to the maid, if it has them in their advantage, we are not an abuse of trust, but to a theft.
should then be the perpetrator, a holder of the thing. Article 775 of the CC defines tenure as follows:
Article 775. "It's called the mere possession exerted on one thing, not as owner, but instead or on behalf of the owner."
This can not preach in the case referred to the domestic, nor a clerk in the store, or a vigilante, to dispose of the goods or things entrusted to your care.
precisely in this condition, if the agent holder of the thing, is the reason lesser punishment policy against the infringement to theft, since the abuse, the active subject of the object takes ownership of the offense, while in the former, enter tenure violate the victim performed on the object.
In other words, using the theory of action constitutes theft, in that the movable area is in the custody of the victim while the abuse of trust is in the area of \u200b\u200bcustody the agent.
In the above examples, the objects upon which rests the illegal conduct, are not in the area of \u200b\u200bcustody, the housekeeper, or dependent, or vigilante, but in that of its owners, keepers or legitimate holders who employ such persons to exercise that custody.
However, in the case of a collector who is entrusted with the raising of funds, the money he received will be in their area of \u200b\u200bcustody for autonomy that amounts to have on them, exist for the other , a holder, necessary to the offense of abuse of trust. Then if he displays his unlawful conduct before being delivered to whom he entrusted the collection, we study the offense.
This is complemented with the words "confident" descriptive norm used by the abuse of trust, which means that the power would abuse can be found on the property, not only for the delivery to him by the owner, possessor or holder in due course, but also because they have been entrusted, in the event that the doctrine known as "symbolic delivery of trust", and coincides with the example of the collector, who does not get the thing to its owner, but only trust to receive the money from the debtors.
Our Supreme Court part of another criterion, which actually received a majority in jurisprudence and doctrine. Expressed in one of his recent rulings on the subject: "Then if the defendant, against remuneration, in this case called a percentage of sales and receipts, his tenure as an agent selling 'Termoluz' continued reliance on it, no doubt refers to the existence of an employment contract, so if in carrying it seized company values, crime is the theft, since at no time, as well as preaching the Circuit Criminal Court in Medellin, there was displacement of the possession of the goods appropriate to the individual offender and the Corporation has established that 'If the thing is under the care of the offender, under a service relationship, for example, excluding the deposit or delivery power of one and therefore both the obligation to repay '(Sent. November 7, 1950, LXVIII, 591), (Sent. September 8, 1981).
However, in 1958, the same high Corporation said: "The term 'title not involving transfer of domain', a condition which affects the delivery of fraudulently appropriate to the offense of which Article 412 of Penal Code (abuse of trust) should not be construed narrowly, because the crime of breach of trust committed not only when delivered is subject to contracts which do not transfer the domain, such as leasing, loan, pledge, mandate and warehousing, but also when it comes from acts of legal ownership or fiduciary. "
" ... In summary, the difference must be sought rather in the kind of privileges granted to the agent, or rather in the degree of confidence given (trust are supported), or liability (also capable of degrees) that characterize the authority of offender "(Judgement of 21 February 1958).
The previous statement, broader understanding of the element" title does not translational domain, which poses the thesis of trust or responsibility of the offender, to establish that the "abuse of trust" is more suitable to our reasoning in the case of collector, who despite having a relationship or contract work, autonomy and accountability in the management of the thing, material object of the offense, is located more to the concept of abuse of trust theft.
His tenure in the strict sense but can not be regarded as a fiduciary, an act must be voluntary and free of delivery, which involves a disposition of the thing, especially about money, and excludes the idea of \u200b\u200bempowerment, action constitutes theft, still more ontologically a misappropriation.
b) movable property of others: It's true what was said at its study through theft.
c) Ownership or abuse: There are two modes or forms of abuse. Ownership, the more serious of course, referred to in the first paragraph of Article 249, which carries the definitive expropriation of the thing.
sell, barter, give away, keep in mind appropiation are behaviors that denote ownership. The simple retention do not configure this element, so that within the processes is necessary to determine the mood of restraint, according to the rules of evidence.
abuse abuse of confidence are referred to in paragraph three of article said, adding as an element, the effect on third. If the thing has been delivered for use, you must use agreed or crucial factor the natural thing, if not, there is a misuse.
breach of trust: Article 250 contains four grounds of qualification:
"Article 250. Abuse of trust. The penalties are imprisonment of three (3) to six (6) years and a fine thirty (30) five hundred (500) legal monthly minimum wage if the conduct was committed:
1 °) Abuse of office discerned, recognized or trusted by the public authority.
2 °) If deposit required.
3 °) on property belonging to companies or institutions in which the state has all or most of, or received any title.
4 °) on property belonging to professional, civic, labor, community, youth, charitable or non-governmental community.
The first for the clear reason that requires a greater respect for authority, which violates committing the abuse. Here is a conflict with the rules embezzlement, to the extent that the modalities of "embezzlement by appropriation" (Art. 397) and the embezzlement of use "(Art. 398), denote behaviors of misappropriation and misuse.
The rating of the active subject that bring these rules, such as "public servant" does not serve as a distinguishing factor, because the functions discerned, recognized or entrusted by the public authority who give the category of public servant obtained, the wording of Article 20 of the Penal Code, which includes in this concept, the "individuals performing public functions on a permanent or temporary ...".
Take an example: a seizure of property seized and attached is a public servant in the exercise of that function, discerned by a judge of the republic. If appropriating property entrusted to him, is committing the crime of embezzlement (Art. 397). Is not applicable to the breach of trust, by the criterion of specialty embezzlement speaks of a qualifying asset subject: "public servant" and also contains a more specific behavioral description, ownership of private property whose administration, possession or custody entrusted to him by reason of or in connection with their duties. Also if someone is appointed guardian, conservator, executor, etc..
The hypothesis of aggravated breach of trust for the cause first, it is applicable for example, the depositary, who gives kidnapping to keep the assets entrusted to him by the judge. In this case, the depositary retains its particular status, it is not a public servant, even to the fact that property custodian. The aggravating factor is deduced by the fact that the deposit was entrusted by a public servant, whatever it is that kidnapping for the purpose of caring for these goods.
The second cause, relieve the situation involving the required deposit, usually of calamity, that should not be used by the depositary as well as breach of trust, involves the abuse of urgency, to which was otherwise have a sense of relief and solidarity.
Recall that the required deposit is referred to in Article 2260 of Civil Code, which states: "The shell itself is called necessary, when the choice of depositary does not depend on the free will of the depositor as in the case of a fire, wreck, looting or other calamity. "
Grounds 3 and 4 are noted as a consequence of the disappearance of the crime of embezzlement by extension, that the above code contemplated in Article 138. The two modalities of the embezzlement, the only ones that could be committed by individuals, were added to the list of aggravating circumstances for the crime of breach of trust. Probably its suppression is due, to not exhibit precisely the essential condition of embezzlement on the active subject: public servant.
were considered to be a particularly active subject of this behavior, should rather be taken as ordinary behavior against economic patrimony, although exacerbated by the public or collective ownership of property, material object of the offense.
In that order, the ground 3, aggravated breach of trust where there is on property belonging to companies or institutions, or received in any capacity in the same State. The difference with the hypothesis of embezzlement, is that this behavior is given by an individual. Can fit within this causal, mixed economy companies, those with capital contributions, the State and individuals, but only once the state has the majority (over 50%). If it is a lower contribution, this is a non-aggravated breach of trust, as to this cause. Received title to any State, may include assumptions for help, donation, loan, etc..
As to the last causal, it is a sort of approval from state assets, and these goods whose collective regime, unions, welfare or common good, recommend a focus protection through the aggravating and collective interests they represent and manage. Here associations can fit perfectly for the various professions (doctors, lawyers, engineers, etc..) Civic organizations (civil defense), trade unions (trade unions, workers, etc..) Community (community action groups), juveniles ( Boy Scouts, sports clubs, teen drug recovery, etc..) charities (schools for the blind, deaf, charitable homes, homes for single mothers, orphanages, etc..) common good (common interest NGOs, Red Cross, etc.). The list is not exhaustive and may be as long and wide as the development of civil society it will impose. Nor is rigorous classification, may attend more than one circumstance in the same association or entity.
TIME CONSUMED: An important issue raised in judicial practice is this, given their impact on territorial jurisdiction. There are two proposed thesis of the place and time where you must return the thing or accountability, and site and instantly available abused.
The same Supreme Court has swung between them, but now seems clearly decided by the last one standing right in our humble opinion, and which bring the two following excerpts jurisprudence: "It is true that the law at one time said that knowledge of processes for the crime of breach of trust was for the court of the place where the thing was delivered in a non-domain involving transfer , or at the place where it should be returned or must be accountability. Between two extremes, the Court hesitated.
"However, these criteria were dropped against this undeniable legal truth: the crime of abuse Trust is punishable by instant commission. Then consumed at the time the agent performs an external act of disposal of the thing or incorporation it to its heritage, a spirit of lord and master, that is, rei sibi animus habendi, or as others express it, where appropriate used to dominate. "
" It is obvious that this criterion is subject to test execution in a given territory, this external act. If we can locate the site with approval, the judge having jurisdiction there rightful knowledge (Art. 41 of C. PP.). If, however, is unknown where competition is set to prevention (Art. 42 ibid.). "(Order of November 27, 1980, Judge Rapporteur: Dr. Fabio Calderón Botero).
In Providence 8, September 1981, the Court reiterated its position: "The crime of breach of trust in the situation envisaged in the first paragraph of Article 412 of the Code be repealed and 358 of the current code, is a violation of instant fulfillment on the site is improved and the time, undoubtedly, is realized by positive acts and unequivocal intention of appropriating the benefit of oneself or others, of movable property entrusted or delivered by others not involving transfer domain title. (Order of September 8, 1981).
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