CHAPTER VI THE
UNFULFILLED
CONCEPT: The sixth chapter of crimes against economic heritage contains a series of criminal self, whose common factor is the fraudulent form which causes financial loss and illegal profit and accountable agent.
They are ten:
• Abuse of inferiority circumstances (Article 251);
• Use of outside error or unforeseen circumstances (Article 252);
• Rise of goods (Article 253);
• Abduction of good children (Article 254);
• Provision of goods as levied by a pledge (Article 225);
• Fraud fluid (Article 256);
• Illegal access or illegal provision of telecommunications services (art. 257);
• Misuse of inside information (Art. 258);
• embezzlement and squandering of assets (Art . 259);
• Improper management of social resources (Art. 260).
criminal rate is less doctrinal and jurisprudential tradition, which tend to register less judicial statistics, punishable by less than those of other economic crimes, and usually involve fraudulent or abusive behavior, rated of lower intensity than the basic figures.
inferiority CIRCUMSTANCES OF ABUSE: This is the unfair advantage of conditions that limit or alter the victim's ability to conduct legal business, inducing it to verify, to the detriment of their heritage and the corresponding benefit of the agent. It is also known as circumvention or exploitation of disabled persons.
The Code of 1936, this behavior was located within the scheme (art. 411). The move to the frauds due to the good idea that she can not be a form of fraud because it lacks the most essential element to it, cheating. His medium is the abuse, is this who comes to mediate the side of the two major means of committing crime, violence and deceit. The Code of 1980, the figure had the same typical structure which was outlined for the code 2000.
Article 251 prescribes the conduct thus:
"Abuse of a position of inferiority. Who, for the purpose of obtaining for himself or for other unlawful purposes and abusing the need, passion, or disorder a person's mental or his inexperience, induces an action capable of producing legal effects as harm shall be liable to imprisonment for one (1) to four (4) years and a fine of five (5) to fifty (50) statutory monthly minimum wage. "
" If we thereby incur the injury, the penalty shall be two (2) to five (5) years imprisonment and a fine of ten (10 ) to two hundred (200) legal monthly minimum wage. "
As described above, the rate was a mere criminal behavior, since it requires in the first paragraph, verification of the injury, aggravated when the criminal offense This happens (second paragraph).
inferiority circumstances set out exhaustively, require a restrictive interpretation of the rule. They are: the need passion, mental disorder and inexperience.
induced to perform the act capable of producing legal effect, is a process of persuasion, to be found in the subject who is responsible, some reflective capacity. She can not be verified with respect to persons totally incapable, as "mentally ill", so that mental disorder refers to a decline in mental abilities, which gives room for reflection of the victim to decide and perform the act induced.
Much of the authors argue in this sense, the absolute inability of the victim, makes her a mere instrument material the will of the agent, and therefore the legal definition of theft would be made, not fraud.
Needs are gaps which occur mainly on the material or economic, but can also occur in relation to other planes (affective, sexual, cultural, etc.).. Let us cite as an example of one who takes advantage of illiquid economically urged to get through to provide food for his family, inducing him to sell him some furniture or property value, bargain prices. Which takes advantage of the parent who should get the money for urgent surgery of his son, convincing him that he sell any property at a price far below its value. In these cases, besides the study can be found in raising the civil institution of enormous damage.
Passions feelings on their part are passionate, intense and extreme, can be agitated and stormy movements of the mind, or limited movement in its intensity, indeclinables. Can be positive as promote and revitalize the spirit toward laudable goals, or negative, as do suffer and suffer, and may prompt negative behavior against them or others. Content can be religious, sporting, political, sexual, etc. As examples, we mention the one who takes advantage of others with their crush fatuous or obsessive sexual fixation to be estimable value to goods, with no real relationship between them emotional or sexual type. These cases can not be taken absolutely; will analyze each question specifically, to define whether it is in fact a beneficial use and reprehensible, or just simply we are dealing with acts of generosity (or stupidity?) And amorous conquests . In any case, action must be verified to induce.
Inexperience is the lack of background practices that give the person a more realistic perspective plane in which they operate. It may be inexperienced at the early age, socio-cultural extraction, because it has ventured into certain practices or materials, among other reasons. The farmer from one moment to another, come to the megalopolis today, it can be easy prey to these types of abuses, when he is aware of this condition, is determined to perform the act that undermines equity.
fraud consists in this figure by the exploitation of one of these inferior conditions that determine a favorable action of the agent, who aware of this situation, take advantage of it. The study involves fraud on the taxpayer, a weak will, so that consent is vitiated by this condition means.
EXTERNAL USE OF ERROR OR ACTS OF GOD: This is the appropriation of goods that have entered the sphere of possession of the agent, by mistake or unforeseen circumstances.
The error should not have been induced nor maintained by the agent on the victim because it would result in the scam, but it is incurred regardless of the former. May be a mistake on the person, as when it pays to believe the creditor, or the object, such as when paying more than necessary.
The case is an unforeseen casualty under his chance, imposes situations such as entering into possession of a stranger, to be be restored to the rightful, as in the case of earthquakes, floods, etc. that can lead to property (eg livestock) are displaced to different estates to their rightful holders.
Article 252 regulates this figure with the following:
"Use of error or unforeseen circumstances outside. He who appropriates property belonging to another and in whose possession any alien entered by mistake or accident, liable to imprisonment for one (1) to three (3) years. "
"The punishment shall be imprisonment of one (1) to two (2) years if the amount does not exceed ten statutory monthly minimum wage."
The error must be alien to the author, so if it is the offender, who mistakenly takes the bag that does not belong, and warned of its valuable content, not restored to its owner, but appropriates it, can not be this figure. This raises the issue of criminality of this behavior in our legal system, as in others it includes even the kind of error could not preach in a pattern of theft, because this figure assumes that parallel to the seizure, run for the purpose of illicit use. Unless the situation is considered as a fortuitous event, due to the ambiguities of daily drudgery, and it typifies the other variant of achievement in the study, the conduct is atypical.
Typical cases of others, are the store clerks that return more than they should, or those who bankrolled to appropriate a sum to do so in the wrong account. To have the offense under study, the author must first realize that has come into possession of a sum greater than what was owed, the wrong way, and second, engaging in acts that demonstrate a spirit of ownership. This is critical because many people can realize the mistake, far from the site (from one city to another or from one country to another) where they can return the property, but may be required to move to retake it, or pay expensive shipping freight. Everything depends on the case (good value, possibility of its return, etc.).. It may even happen that the person does not have time to take the steps to bring the property to its rightful holder, settling for a mere call to enable this to go on your quest. The alleged defrauded can not wait to bring him good home, being your fault or a third party, must go look, if the error is the possible future recovery, and took sides with the view that this is a case fortuitous, the requirement to retake the property into the hands of the injured is a must.
concealment of assets: It is an offense that includes fraud of the debtors were insolvent to the detriment of creditors. The previous code traders excluded borrowers, leaving them under the application of criminal offenses contained in the Commercial Code, within the "criminal regime of bankruptcy."
Reza Article 253:
"Rise of goods. He who raise their property or conceals or commits any other fraud to harm the creditor shall be liable to imprisonment for one (1) to three (3) years and a fine of ten (10) to two hundred (200) legal monthly minimum wage. "
This standard has been difficult application in the few cases that have gone through the courtroom, because of the difficulty of proof of fraud, usually disguised as business failures by the contingencies own economic activities. Also because the dummy act involves coating conditions of reality and legality, then justice can not always be disparaged.
also because many of the acts that may harm the creditor, the debtor's assets decreasing or increasing their liabilities, are acts that were performed within the scope of availability of goods, in turn exercise of public freedoms , enshrined in the Constitution, so the criminal court can not, go to blame the apparent recklessness or stupidity of the debtor in managing their businesses. The creditor can not 'let down' by the insolvency of the debtor as a result of their unfortunate economic developments, called victim of this crime, but in the case where there is the fraud to rise (with the goods lost or missing), to hide (hide them physically or falsely at the top of third), or commit any other fraud (notionally forward them to seize or foreclose).
In any case, it must be demonstrated in a fraudulent manner that leads the debtor to be placed in a situation of insolvency, which involves ideological connectedness between that act and the harm to his creditor, to thwart that matter. May be a mistake on the person, as when it pays to believe the creditor, or the object, such as when paying more than necessary.
The case is an unforeseen casualty under his chance, imposes situations such as entering into possession of an alien, should be restored to the rightful, as in the case of earthquakes, floods, etc. . that can lead to property (eg livestock) are displaced to different estates to their rightful holders.
Article 252 regulates the figure with the following:
"Use of error or unforeseen circumstances outside. He who appropriates property belonging to another and in whose possession any alien entered by mistake or accident, incur a prison sentence of one (1) to three (3) years. "
"The punishment shall be imprisonment of one (1) to two (2) years if the amount does not exceed ten statutory monthly minimum wage."
The error must be alien to the author, so if it is the offender, who mistakenly takes the bag that does not belong, and warned of its valuable content, not restored to its owner, but appropriates it, can not be this figure. This raises the issue of criminality of this behavior in our legal system, as in others it includes even the kind of error could not preach in a pattern of theft, because this figure assumes that parallel to the seizure, run for the purpose of illicit use. Unless the situation is considered as a fortuitous event, due to the ambiguities of daily drudgery, and it typifies the other variant of achievement in the study, the conduct is atypical.
Typical cases of others, are the store clerks that return more than they should, or those who bankrolled to appropriate a sum to do wrong account. To have the offense under study, the author must first realize that has come into possession of a sum greater than what was owed, the wrong way, and second, engaging in acts that demonstrate a spirit of ownership. This is critical because many people can realize the mistake, far from the site (from one city to another or from one country to another) where they can return the property, but may be required to move to retake it, or pay an expensive shipping freight. Everything depends on the case (good value, possibility of its return, etc.).. It may even happen that the person does not have time to take the steps to bring the property to its rightful holder complying with a simple call to enable this to go on your quest. The alleged defrauded can not wait to bring him good home, being your fault or a third party, must go look, if the error is the possible future recovery, and took sides with the view that this is a case fortuitous, the requirement to retake the property into the hands of the injured is a must.
concealment of assets: An offense that includes fraud of the debtors were insolvent to the detriment of creditors. The previous code traders excluded borrowers, leaving them under the application of criminal offenses contained in the Commercial Code, within the "criminal regime bankruptcy. "
Reza Article 253:
" Rise of goods. Which will boost your property or conceals or commits any other fraud to harm the creditor shall be liable to one (1) to three (3) years and a fine of ten (10) to two hundred (200) legal monthly minimum wage ".
This standard has been difficult to apply in the few cases that have gone through the courtroom, because of the difficulty of proof of fraud, usually disguised as business failures by the contingencies inherent in economic activities . Also because the dummy involves coating act in terms of reality and legality, then justice can not always be disparaged.
also because many of the acts that may harm the creditor, the debtor's assets decreasing or increasing their liabilities, are acts that were performed within the scope of availability of goods, in turn exercise of public freedoms , enshrined in the Constitution, so that the criminal judge can not, go to criticize the negligence or the apparent awkwardness of the debtor in managing their businesses. The creditor can not 'let down' by the insolvency of the debtor as a result of their unfortunate economic developments, called victim of this crime, but in the case where there is the fraud of rising (getting lost or missing assets) of occult (hidden physically or falsely put at the head of third parties), or commit any other fraud (notionally forward them to seize or foreclose).
In any case, it must be demonstrated in a fraudulent manner that leads the debtor to be placed in a situation of insolvency, which involves a teleological connectedness between that act and the harm to his creditor, to thwart the satisfaction of intentionally obligation. If the state of insolvency, comes in spite of the debtor can not afford this illegality, it would involve a detestable form of strict liability. Even if that insolvency occurs apathy or lightness in the debtor's business, you can not impute the conduct of the art. 253, because it would result in a fault hypothesis, which is not expressly set out for this offense is not punishable.
Within the orbit of freedom and personal autonomy, the law provides citizens with a wide scope for action, within which there is freedom of contract and negotiate, but may be more restricted assets , that derived from fees and guarantees voluntarily recognized and granted the debtor (mortgages, pledges, etc.).. If the insolvency should to the contingencies of the business and the economy in general, can not be held liable for the criminal wrongfulness not honoring its obligations. That can flourish, setting the action for concealment was fraudulent, concealment, or any other cheat to circumvent the payment of its obligations.
OWN REMOVAL OF PROPERTY: This is an offense that protects the legitimate holder of a chattel, compared to the same owner. Doctrinally is known as "theft of possession" or "furtum Possesionis." Article 254 says:
"Abduction own good. The owner of movable property of the person who removes it has legitimate in his possession, to the detriment of this or a third party, liable to a fine. "
is the same behavior (theft) of theft, which fall on the object itself contained no such structure, since it requires such qualification strangeness material object of the offense. Set then a fraud, an offense less serious than that, but still punishable.
can happen on the property that has a repository, user, pledgee, renter, kidnap, ETC. when the owner or possessor them away from the sphere of power or possession in which it has them. That holding has to be legitimate, of course, usually arising from an agreement, contract, judicial or statutory provision.
requires the standard to be subject to the holder or a third party, which can be given for failure to exercise or enjoy the rights arising from ownership or lawful possession. When not given, would be unreasonable to punish such conduct, in consideration of the ownership relationship between the agent and good.
If the term expires agreed or required by court order or by law, to restore the chattel, and forced to do so the owner does not commit this fraud, if you subtract the well, unless and keeping legitimate, but can be held responsible for "arbitrary exercise of one's own reasons," police conduct special misdemeanor, according to art. 1, paragraph 1, of Act 23 of 1991.
OWN ENGRAVING AVAILABLE WITH GOOD TURN: This provision is similar to the previous one by the ratio of property generally is the active subject of the physical object of the offense. But the difference is that it retains possession of the property, resulting fraud is not the attack on the possession, but the mockery of the security (collateral) of the equity interest of the victim.
garments usually involve delivery of the property pledged to the creditor, but there are no calls holding, governed by private law which are those that can give rise to these behaviors. Art. 1207 of the Commercial Code provides this type of garment: "Unless the statutory exceptions, may be taxed by a pledge, the debtor retaining possession of the thing, all furniture needed for economic exploitation and for her or that result from the same farm ...".
Fraud can be made available through any good, would preclude effective collateral. Article 364 speaks of various forms of fraud. "... Leave, hide, processed, disposed of ...", but this statement is only illustrative, because immediately adds that "... or by any other means ...".
says the full text of that provision:
"provision of goods as levied against security. The debtor to the detriment of the creditor, leave, hide, processed, disposed of, or by any other means available, rather than a pledge and have been charged with possession of which he remains, shall be liable to imprisonment for one (1) to four (4) years and a fine ten (10) to one hundred (100) legal monthly minimum wage. "
Leaving means discard, throw, throw, give up the right, exposing to lose its value or that is appropriate for someone else, and thus disappoint the lienholder, which is a criminal who protects this device. You can also occur when the debtor willfully neglect garment, so that damaged or totally damaged, losing its value. Can of course be imputed guilt, because only penalizes willful mode.
Hide mean eliminate it, lose it in your location, to the creditor and justice which might demand of that claim.
transformer means move it so, so losing the identity of the asset that secures the loans will, if the change does not mean unprotected credit, can not speak of criminal illegality, since there is no attack on the legal right (financial assets). Is that security can be improved even if the change enhances the well, as he has offered in pawn a computer, which will increase storage capacity and are inserted new 'drives'.
Alienate means transferring ownership of the property, sell, barter, donating, cediéndolo, etc. However, in this mode as elsewhere, we believe that if the debtor timely cover the obligation secured by the pledge, no crime, not because there is no illegality (insult to the legal) but because even the behavior is typical, Article 255 speaks of "... to the detriment of creditors."
LACK OF FLUIDS: In the study of the physical object of the theft, was sent to such new criminal code in 2000. Accepting the view that these assets may be subject to the crime of theft by introducing this special figure, the behavior of theft of electricity, water, natural gas or telecommunications signal, moved to this location plural frauds.
Reza Section 256 of the new code:
"fluid Fraud: The secret to using any mechanism or by altering control systems or devices accountants, appropriating power, water, natural gas, or telecommunications signal, to the detriment of others, be liable to imprisonment of one (1) to four (4) years and a fine of one (1) one hundred (100) legal monthly minimum wage. "
In this offense, the physical object, has the peculiarity in the form of current or fluid, as such give the initial impression of not fitting in concept of 'chattel' or 'chattel', but reconsidering the point, are perfectly capable of being stolen, as is seen in practice, through various mechanisms to attract (Pipes, wires, etc..) Or alteration of measuring devices or consumer control (known as contraband).
Apart from the systems 'smuggling' of energy, water, natural gas or telecommunication signals, mechanisms that are not always illegal (pipelines, extension wire, satellite dishes, etc..) Can review tenants cases in collusion with employees or operators of businesses that provide such services, manage the illegal reconnection of services without having paid the monthly arrears led to the initial cut, leaving the owners and holders of large real estate accounts, to be paid if they are to enjoy their properties with all amenities. In these cases, criminalizes the conduct of Section 256, which was attended by operators as accomplices in it, being affected property holders.
In the case of water, it is important to define this type of criminal usurpation of water "(Article 262), suggesting that the fraud is remove the liquid from the tubes that particular operator or dealer has installed for that purpose, while theft is diversion of water, whether public or private, from their beds, or to prevent it from running into them. Factually can be said that the abduction is actually fraudulent conduct, abduction or deception (change of accountants or control systems), while the hijacking, is a behavior that involves force against nature (diversion or obstruction of flows water). In the latter case, it works with the concept of property by destination, unlike the water in the crime of fraud, which to be grasped, it becomes movable.
This new fraud updates not only technical developments but also the progress of crime, which has not had major difficulties for 'smuggling' also telecommunications services. In either aspect, fitted cellular technologies, fiber optic, traditional telephony, etc. and his side, the practices of telephone connections defraudatorias 'pirates', cell cloning, unlawful access to communication networks, etc.
UNLAWFUL OR ILLEGAL PROVISION OF TELECOMMUNICATIONS servos. This is a new type of crime that reflects technological advances and massive expansion of telecommunications services (conventional telephone, cellular, etc.), But also reveals the political reshaping of the State, one tenth the provision of public services reserving its control and monitoring role. This is the neoliberal state, which expands the market economy, to domains previously reserved for public services, within a global perspective of globalization, in which the core countries outlined new investment channels, requiring collateral (including the scope penalty) to their interests.
Cellular telephony is a form of mobile communication, which can be accessed fraudulently using the "cloning" or duplication of cellular handsets, made by copying the primary identification number and identification number mail. This hypothesis is nestled on the side of the rule, which penalizes the "... who accesses or uses the cellular mobile telephone service or other telecommunications service by copying or reproduction is not authorized by the competent authority identification signal equipment terminals of these services, referrals ...".
Using public telephone lines switched basic local, extended local or long distance, is the public service at home, basically regulated by Law 142 of 1994. If it is verified that use without permission from the company providing the service, you incur the crime under consideration. This can happen because fraudulently altered consumption measuring mechanisms (international calls as if they were local), altering the category of subscriber numbers are enabled surreptitiously vacancies are operated fraud in billing software services, fraudulently handled public payphones many other ways that the complexity and technical sophistication allowed in this field.
The Constitutional Court declared unenforceable original paragraphs of the article 257 of the COP, in Decision C-311 of April 30, 2002, article reads:
Article 257 .- The illegal access or illegal provision of services telecommunications. The accessing or using the cellular mobile telephone service by copying or reproduction is not authorized by the competent authority identification marks of terminal equipment for these services, referrals, or use of lines of local switched basic public telephony, local or extended unauthorized long-distance liable to imprisonment for two (2) to eight (8) years and a fine of five hundred (500) one thousand (1,000) monthly legal minimum wage
The original wording was:
Art . 257 .- The illegal access or illegal provision of telecommunications services. The accessing or use the cellular mobile telephone service or other communications service by copying or reproduction is not authorized by the competent authority identification marks of terminal equipment for these services, referrals, or use of lines of local switched basic public telephony, local or long extended unauthorized distance, or providing telecommunications services or activities for profit is not allowed, be liable to imprisonment of two (2) to eight (8) years and a fine of five hundred (500) one thousand (1,000) monthly legal minimum wage.
The previous sentence shall be increased by one third to half, who had exploited commercially by itself or through an intermediary, such access, use or delivery of unauthorized telecommunication services.
Like suffer increased penalty to third parties who provide access, illegal use or unauthorized provision of service in this article.
Asides declared unenforceable, they were by their ambiguity, contrary to the aspirations of precision and accuracy that should be in the description of the punishable acts. Otherwise, said the Court, this would be giving the judge the authority to fill the content of that expression, which violate the principles of legality and reserve legal.
Ciertamente las expresiones retiradas de la norma en estudio, constituían un ejemplo de lo que se ha denominado tipos penales abiertos, cuando la determinación del contenido de sus conceptos queda desproporcionadamente abierto a la interpretación judicial; aunque no se trata de criticar la labor necesaria de interpretación judicial, que deben realizar los jueces, en estos casos, la magnitud de esa hermenéutica es tal, que finalmente se puede ofrecer a deslizamientos arbitrarios en la función judicial.
También se pueden asociar esos apartes con el concepto de tipo penal en blanco, en la medida en que quedan pendientes de actos o normas administrativas (Giving the relevant authorization from spoken texts in declared unenforceable), complements expressing a debatable administrationalisation trend of criminal law.
IMPROPER USE OF INFORMATION. The Code of 2000, introduced the offense, which seeks to protect individual firms, the professional disloyalty of his paintings or employees, committed to economic gain unlawful benefits for himself or a third party.
Belonging to a company or private entity, involving duties of loyalty and reserve. An employee of a company that status, have the opportunity to access certain information with respect to which should be kept in general terms, proper discretion or total reserves, if necessary, much less is authorized to take economic advantage of such information, which is pursued precisely this type of crime. It reads as follows:
"Section 258. Misuse of privileged information. The fact that an employee or director or member of a board or board of any private entity, in order to seek profit for themselves or to a third party misuses of information to be known by reason or occasion of their position or function and is not subject to public knowledge incur a fine. "
" The same penalty shall be incurred by using information known by virtue of their profession or trade, to obtain for himself or for a third benefit by negotiating certain action, security or instrument recorded in the Register National Securities, provided that such information is not public knowledge,
The Criminal Code there are various types of crimes that prohibit disclosure or use of confidential information. It is here set boundaries with them. With respect to Disclosure of criminal secret (Art. 418), use of subject matter to secrecy or confidentiality (Art. 419) and Misuse of official information trading (Art. 420), there is no problem of confusion, because they require a qualified active subject, which is "public servant", the which art. 20 gives us a classification. Crimes are treated in public administration, in which not always required to have in order to gain illegal financial content, as in the case of Article 258.
Nor can there be confusion with the offense of Section 431 (Improper use of information obtained in the exercise of public function), because this hypothesis also requires a qualified individual, and the qualification is retroactive: "He who having served as a public servant during the previous year ...".
Quedíi separation by defining the crime of Article 308, which provides'
"Art SOS Rape industrial or commercial reserve. He who use, disclose or disseminate discovery, scientific invention, process commercial or industrial application, she has become aware by reason of his office, trade or profession and must remain in reserve, shall be punishable with two (2) to five (5) years and a fine of twenty (20) to two thousand (2.000) statutory monthly minimum wage. "
" The same punishment shall know that illegally copy or obtain secret related to discovery, scientific invention, process or industrial or commercial application.
"The penalty shall be three (3) seven (7) years' imprisonment and a fine of one hundred (100) to three thousand (3,000) monthly legal minimum wage, if you get benefit for oneself or a third party.
The distinction between this type of crime and Art. 258, lies in the specificity of the behavior of 308: disclose or disseminate scientific discovery or invention or industrial or commercial application, while in that it is the generic use of information known by reason or occasion of their position or function and is not subject to public knowledge. This means that those facts, as individual and special, to disclose or disseminate scientific discoveries or inventions, or industrial and commercial applications to be kept secret, by statutory and / or contracts are considered more serious and are located in the attacks against "social economic order", suffering a penalty more severe than that imposed for art fraud. 258, a legally offensive smaller scale, individual economic wealth, rigging only the penalty fine.
The conclusion is that, excluding the specific behaviors contained in art. 308, the misuse of information is housed in the art. 258. An example of such behavior, it gives the same standard, in its second clause, involving the use of secret knowledge to negotiate on the stock market. It should be clear that the conduct must be done in order to draw upon assets to the author or a third party, to the detriment or prejudice of the assets of the entity that can be not only present but future, because the company no longer win what had been won, had it not been the misuse of information privileged. Otherwise be unknown to the principle of harmfulness (art. 11 CP).
embezzlement and squandering of ASSETS: This is an alternative type of offense protect the assets of the pupils, compared to the mismanagement of guardians and conservators. Of course, that such maladministration should be in the ten-specific verbs children "embezzle" and "squandered" and not in any kind of bad, poor or inappropriate management. The exhaustive and criminality principle that behaviors involving adhere unequivocally described in the respective offenses.
While it is true that the criterion axial to challenge a property management can be the impairment or loss thereof must be shown to have embezzled or squandered is so intentionally (the figure does not lay the fault mode).
Misappropriating means, as its etymology implies, convert bad assets or funds, diverting them from their normal course. However, be careful not to confuse these assumptions with those of "breach of trust" aggravated by paragraph 1 of art. 250. If the person appropriates or misused the goods, incurred in that kind, but if this is another kind of undue destination (provided without warranty of any kind, for example, or placed in institutions knowing that they are broken) behavior is that of art. 259.
means squander squander, waste, waste flows, with exaggeration, without limits. For the case, we illustrate, with the attitude of buying things lavish, unnecessary for the ward, paying inflated prices for goods, contract services unnecessary or superfluous. All this must be weighed in each context, which are about the size of the property, the coverage of basic needs of the ward, etc.
The conduct of the art. 259 is applicable subsidiary, as many of the assumptions of embezzlement can fit in basic criminal types that protect the economic assets. The text of the rule says:
"embezzlement and squandering of assets. He who misappropriates or dissipated assets it manages in the exercise of custody or guardianship, shall be liable to imprisonment for one (1) to two (2) years provided that the conduct does not constitute another crime. "
There should be no confusion of this type, in the art. 236 (embezzlement and squandering of family property), to the extent that this, custody and guardianship to bear on family members (parents, adoptive parent, spouse or life partner). The contest is resolved the criterion of expertise, as soon as you that specific family relationship there indicated; this is in addition to the legal protection of such property, the family, while the other embezzlement and squandering, protecting the individual's economic assets.
Guardianship and curatorship are headquartered regulatory elements defining the civil law. Art. 428 of the Civil Code says in effect: "The guardianship and conservatorship or guardianship are charges imposed on certain persons for those who can not manage themselves, or competently manage their businesses and which are not under the authority of father or husband, who can give the Protection ...".
mismanagement of social resources, we meet another new offense in the field of economic crimes against property, which has its collective economic and social connotations.'s familiarity with some of criminal offenses ranked in the economic and social order is obvious: misuse of funds collected to the public (art. 314), and routine mass uptake money (art. 316).
Regarding the first figure, there can be no room for confusion, by describing the specific art destination. 314 "... operations aimed at gaining control institutions subject to supervision by the supervisory authorities referred to, in addition to the express qualifications of the active subject.
As for the offense of art. 316, the question is less clear. The conflict of rules is solved by the special ingredient subjective type of art. 260 which is to advance or manage projects of civic, labor, community, youth, charitable or non-governmental community. He says this statement verbatim:
"improper management of social resources. That the purpose of advancing or manage projects of civic, labor, community, youth, charitable or non-governmental community, to raise money without fulfilling the requirements outlined in the law to that effect, or fail to make the funds collected as stated previously in the respective project, be liable to imprisonment of three (3) to six (6) years ".
" Forward "means literally, carry or move forward," manage "is to process, fill, both in one or another variant, it is tending towards initiation, the momentum of the project. The project concept is a normative element type, but there is no clear reference to be resorted to. It must be understood in practical terms, as a design proposal and a work plan or execution.
understood in relation to the civilized, with the city, which must prevail in the existence of the civitas, the city, the community par excellence, which is understanding, coexistence, respect for others, the rights of others, through the obligations of each. The association is what brings together and represents the interests of workers, those bound by an employment relationship which involves subordination to an employer, associated organizations for the group effect. The community is defined in terms of the collective, public non-state of societal groups, the general or collective interest. Youthfulness has no precise definition, except when it is so of perception, subjectivity, but we can assume conventionally with adolescence, this stage of life to which bursts with puberty and comes with the emancipation and family independence. The charity aims to assist marginalized or diminished in their abilities, and for common use, to all that pay for or serve the general interests of the community, provided they are not governmental.
there if a proper regulatory ingredient which is to the "requirements prescribed by law" to get money from the public, which raises a white criminal law, to be completed in the respective provisions of law.
A second mode of mismanagement, is not to run (apply or spend) the funds collected as stated previously in the respective project, which is a prior formal presentation of the project, which should also refer in their requirements to the provisions of law on the subject.
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