CHAPTER VII THE CONCEPT
INFRINGEMENT: In the seventh chapter title that we have studied are grouped four types of crimes that protect the property of behaviors that occur exclusively about them. Given its nature, transportable, this class of property, are subject to this type of behavior, usurpers, specifically.
For water, they must be regarded as property, for the crime of "usurpation of water" (Article 262) refers to a channel running through, and this implies a permanent destination for use, cultivation and the building or buildings where courses, according to the provisions of Article 658 of the Civil Code, which refers to the property by destination. These crimes require
complaint, which we assume is due to the strong possibility of legal restoration, under the property, by its nature, must keep its location material. The restoration will have a high viability by the civil courts, so the penalty should be reserved when the victim requests it.
In fact, single criminalized such behavior, except that of "water theft" run counter to a criminal law of last resort. In fact, all these behaviors allow for adequate involvement of other legal devices (civil law, land law, law policemen, etc.), Whose efficacy stems from the nature of good housing, which guarantees almost entirely the preserve of the object at issue. The same rules established civil possessory actions for restoration of violated rights, which if they wanted to they could add strengthening through fine. Go to the prosecution in cases like these, is to use criminal law as a raw ratio of state intervention, that a democratic, modern criminal law, criticized as excessive interventionism branded as part of "inflation criminal, penal systems bottling and is of a certain amount of authoritarianism.
criminalizing be seen in these excessive zeal in protecting property, and particularly in the "invasion of land or buildings", which shows also the sharp response and extreme socio-economic problems, such as the homelessness and the high concentration in the land. Our States, generally bureaucratic and authoritarian, rather than respond to these problems with social and economic policies (land reform, affordable public housing policy, loans are not usurious, etc.), Give priority to criminal policy, merely repressive, by way response to the phenomena of invasion and peasants for land claims, are answered with rules how are you, who joined the bound devices Police and civil rights. To our knowledge, just this last legislative arsenal to confront these situations, except in the case of "water theft" involving as a key issue of public law environmental, home where the behavior should be located within the perspective of "crimes against natural resources and the environment."
land grab: The theft in this type of crime is carried out through the destruction, alteration, removal or relocation of landmarks, or any other signal which sets the boundaries of the property. Counterfeiting is meant both for this offense, as for those using this concept, as an act of arbitrary power.
The landmarks are signs of permanent materials, which define the extent of a property. They can be natural objects (stones, mounds, trees, ditches, streams, creeks, etc.) and artificial (concrete columns, poles, fences, fencing off, walls, etc..).
The purpose of the conduct may be alternatively, the ownership of all or part of the building, or take advantage of it, is meant an economic nature, because of the well protected in these crimes, fits into the latter, the economic exploitation of the land (crops, grazing, recreation profit, etc.)..
Article 261 stipulates that:
"usurpation of land. The appropriate that all or part of the property, or to derive benefit from it destroy, alter or delete the markers or signs fixed its boundaries, or move it, be liable to imprisonment of one (1) to three (3) years and a fine of ten (10) to fifty (50) statutory monthly minimum wage. "
undo Destruction means, they are all gone . In this way prevents the identification of the property, and thus can expropriate part of it, or use temporary economic advantage of it. If the question is itself damaging the markers, the offense is different, the of damage to property of others (art. 265 PC).
altered is to change its shape or aspect, so they become unrecognizable, a modality that can also allow the appropriation or use the standard censoring.
deleted is take away, disappear from where were allocated where they belong by natural disposition, contractual, legal or judicial. The difference with the scenario of destruction, you do not die or fall apart, just up the natural place or in which they are intended.
moving it around, move them from place means, with the consequence that the area of \u200b\u200bthe land that suffers from theft. The difference with both the variation of the "destruction" and the "withdrawal" is that the landmarks are preserved as such, its role bounding or border, but rather different from the corresponding legally to the detriment of the extent and identity of the targeted property.
INFRINGEMENT OF WATER: This usurpation is given by the diversion of the waters, to prevent run for your channel, for use in more than the proper ownership of land or lagoon, springs, groundwater and other water sources.
The waters may be public or private. These are born and die within a site. Which also run through an artificial channel, who have built under the runway.
public waters can be used by individuals, such use being limited to domestic chores, irrigation of the farm, the watering of animals, and industrial applications. These factors determine the usable amount, failing which exceed, in this type of theft as long as they meet course, other elements such as: prejudice third and illicit profit for the agent or another. Expresses
Article 262:
"Counterfeiting waters. He who to get for himself or for other unlawful purposes to the detriment of third divert the course of public or private waters, or would they run for their channel, or the greater use of the proper amount, or appropriating land of lakes, springs, groundwater and other water sources, shall be guilty imprisonment of one (1) to three (3) years and a fine of ten (10) to fifty (50) statutory monthly minimum wage. "
This article contains four types of commission:
1. deviation from a course of water (public or private).
2. Prevent run for your channel.
3. Use a greater amount due.
4. Ownership of land of lakes, springs, groundwater and other water sources.
The adequacy of these behaviors, you should be in hand, taking into account the provisions of the Natural Resources Code (Decree 2811 of 1974), inasmuch as this law contains legal authorizations are adapted to some of these behaviors, for example, the occupation of a channel (art. 102) or the use of water is largely regulated by the statute (Articles 86 et seq.), or the alteration of channels Permission provided for (art. 132).
The act relied on these permits, undermines the criminality of the conduct, because that keeps talking about "illegal benefit." Permit or Concession are legitimizing or legalizing the diversion or obstruction of water. These include, under Natural Resources Code, which has legally enshrined as the environment, or in other words, the ecological balance, the following provisions key water issues:
Article 80, paragraph one: "Without prejudice to the private rights acquired under the law, the waters are public, inalienable and indefeasible."
Article 86, paragraph one: "Everyone has the right to use public waters to meet their basic needs, the family and their animals as long as this does not harm a third runway."
Article 108: "All property is subject to the drainage easement in favor of another public or private property that needs to vent and address the excess water."
Article 155, paragraph 1, "It the Government;
a. Authorize and control water use and occupation and exploitation of their channels. "
The damage to third interprets the type location within the economic crimes against property. Not giving this element are" safe administrative penalties for violation of the Code of Natural Resources who divert or interrupt the flow of water, and other such criminal sanctions arising from the violation of other legal interests other than economic assets and would be legally protected natural resources in Chapter II Title VII of the current Penal Code. "'On the modalities
We record that "diversion" means to impart a different course, out of its banks to leave the water running for another country. Prevent run for your channel, meaning that they interfere to continue its normal or natural. The use issued means that waste it, to waste, so because in these cases, it basically refers to what is necessary. The appropriation involves the lack of public water sources.
With the injury to third, it should be noted that not only must refer to an individual, but also to the community, a situation in which the infringement evidence further damage. It is not the same as someone harm the neighbor who owns diminished the flow of water needed for use, which hurts the whole community, to appropriate an area of \u200b\u200blake, in whose waters the fish spawn, a phenomenon that is significantly reduced by desiccation or part of the lagoon.
In cases like this, there is a tendency even individualistic, to give prevalence to the particular interests in relation to the collective. The fundamental protection of water resources, must become an imperative to locate the seat of the crimes against natural resources and environment, legal provisions that protect the resource, as a collective good, with the weighting and zeal it deserves, compared to abuse, indolence and indifference of many sectors of social conglomerate.
INVASION OF LANDS AND BUILDINGS: In this crime ranks estate agent or entered the building. Such action is done without fee, and iucrandi animus. At first we have to be arbitrary, and this is implicit in the concept of invasion, so it is not necessary in the description of behavior, include the element of arbitrariness.
points in the criminal narrative Article 263:
'MANTILLA Jacome, Rodolfo. "Crimes against economic wealth." Editorial Extem Colombia University, 1988, pg. 84. 222
CRIME ECONOMIC CAPITAL
"Invasion of land or buildings. The fact that the purpose of obtaining for himself or a third party illicit profit, invasive alien land or premises shall be liable to imprisonment for two (2) to five (5) years and a fine of fifty (50) to two hundred (200) legal monthly minimum wage. "
"The punishment prescribed in the preceding paragraph shall be increased by half by the promoter, organizer or leader of the invasion."
"The same increase of the penalty is applied when the invasion takes place on land located in rural area."
"Paragraph. The penalties prescribed in the preceding paragraphs will be rolled up in two-thirds, before pronouncing sentence when the first or only instance, to cease the acts of invasion and causing total eviction of land and buildings which have been invaded. "
not require violence or deceit. Just the arbitrariness, or lack of law. Most modern urban encroachment, run without resorting to such means, taking advantage of unemployment and lack of land.
Here we could speak of a behavioral mode of abuse, but also can be violent when knocked down fences and gates, or attacking people, and fraudulent, when it uses a deceptive maneuver (request lodging, or permission to use a bathroom, with the intention to occupy underground premises).
invasions have become in our time, given the population growth and land monopoly influence in conduct frequent, often determined by the housing need, and others, the economics of working the land.
should be studied in them, so casuistry of course, the figure of necessity, if there is evidence that open the possibility of their existence. A person who does not have a room to live, nor the means to buy or rent, can be jeopardized their health and life itself for permanent exposure to weather. It takes more pathetic when are entire families, and even conglomerates tuguriales that flood, or other serious calamities room left without exposing their personal integrity and to the household that have been saved. Already entered before, in large part, the phenomena of invasion of land, are given by the housing deficit, because not enough housing units for a population growing in geometric progression, aware that there is a large concentration of urban property and rural real estate. We propose then that the criminal protection is excessive, while in other areas of law (civil, police, etc.) Devote several possessory actions, which have the assurance preservation of good, in their capacity building. This was already a great jurist remarked as Irureta Goyena, early last century when he said that "repugnant to admit that the law punishes as a crime, which made itself makes them fill important civil purposes. Under these conditions there is the occupation involving possession and therefore usurpation. The possession, as our civil law and civil law worldwide, generates among other rights, the rule of the fruits and the same property, with the help of time . How is conceived then, legally, a fact to which the law does produce certain benefits for the author, to punish then with more or less severe penalties, to be applied at the same benefit? "(IRURETA Goyen, Joseph." Penal Law Spice! "Ed" Casa Ramos A. Barrciro and "SA, Montevideo, 1929, Volume IV, p. . 226).
invasion worsens for two reasons:
a) In the case of organized promoters or directors of the invasion.
b) When the invasion takes place on land located in rural areas.
attenuation of impeachment had been introduced by Law 308 of 1996, which almost means a recognition of the overprotection of real estate with these types of crimes.
Here it should be noted that the Code of 2000 inserted status on a regular basis, the provision of Act 308 was provided above, in a second article, like Article 367-A of the Noun, in crimes against the social economic order:
"Article 318. Private illegally. go ahead and develop, promote, sponsor, favors, financial, facilitates, permits, work or allow the division, subdivision, development of building or construction without fulfilling the requirements of law shall be liable for this act alone, in prison three (3) to seven (7) years and a fine of fifty thousand (50,000) statutory monthly minimum wage. "
"In the case of personas jurídicas incurrirán en las sanciones previstas en los incisos anteriores sus representantes legales y los miembros de la junta directiva cuando hayan participado en la decisión que traiga como consecuencia la conducta infractora descrita".
"La pena privativa de la libertad señalada anteriormente se aumentará hasta en la mitad cuando la parcelación, urbanización o construcción de viviendas se efectúen en terrenos o zonas de preservación ambiental y ecológica, de reserva para la construcción de obras públicas en zonas de contaminación ambiental, de alto riesgo o en zonas rurales".
"Parágrafo. El servidor público que dentro del territorio de su jurisdicción y en because of their competence, act or omission giving rise to the execution of the facts mentioned in paragraphs 1 and 2 of this article shall be liable to disqualification from public rights and functions of three (3) to five (5) years without prejudice to other criminal penalties that apply for the development of their behavior. "
DISTURBING THE POSSESSION OF PROPERTY. It is violent conduct to obstruct or impede the peaceful possession of property. can be invoked even against the owners themselves, as when they disturb the possession of the tenant, so incurred is in default or breach of its obligations. can be cited as example, the owner who put locks or other safety devices to make access or enjoyment of the property leased.
says the relevant provision (section 264);
"Failure of possession of property. The former of the cases mentioned in the previous article and by means of violence to persons or property, disturbing the peaceful possession other real estate need, be liable to imprisonment of one (1) to two (2) years and a fine of five (5) to twenty (20) statutory monthly minimum wage. "
possession must be understood not in the sense iusprivatista, but in the literal to be in power for good, so blanket not only to the holder under the civil law concept, but also the mere fork, and since then the owner of the building actually physically available. Disturbing
means disturb, disrupt, interfere with the enjoyment of the thing. This can happen for violence to persons or property. The case exemplified the lock is located such as violence, to the extent that it is a way of fact, without any legal backing, on the contrary, is against the law, which protects the holder of the property on the enjoyment of the thing.
offense
The study excludes the disturbance of possession by invasion, which has been provided separately in the previous article. Invade certainly means so disturbing total enjoyment of the property, or at least of the invasion.
If the disturbance involves arbitrary disturbing insight into the premises, may attend the behavior in violation of the home. Also if the violence is committed against the people, are injuries to life or personal integrity are the respective contest offenses. But can not always talk of competition with the crime of another's property damage resulting from violence against things, when the same disturbing is the owner of the property.
0 comments:
Post a Comment