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Sánchez Oviedo, Danny Xavier
THE THEORY OF DETERMINATION OF THE PENALTY CLAIMS GUILT IN ITS STRUCTURE
EXPENDABLE GUILT AS AN ELEMENT IN THE STRUCTURE OF THE CRIME
2022
,
López Soria, Yudith
,
Sánchez Oviedo, Danny Xavier
For more than three centuries, the scientific community of Criminal Law, universally speaking, tries to explain the concept of crime in a systematic way, emerging the Theory of crime, which reveals the concept of crime through the structural elements that make it up. Process that has gone through several Schools or currents of thought, with greater intensity in the Italian and German Schools, the latter, with greater validity today. All agree in conceptualizing the crime as the typical, unlawful and guilty action (conduct) that has a sanction planned. However, the content of its elements has varied from one school to another, and the element that has suffered the most has been guilt, which today, according to the Finalist and Functionalist Schools, con-tinues to be considered the third dogmatic element within of the concept of crime. The objective of this article is to persuade the scientific community of criminal law that guilt is misplaced in the theory of crime and must be dogmatically conceived in the theory of sentencing. For this, a qualitative research approach is applied with the implementation of methods such as the historical-logical, the analytical-synthetic and the inductive. © 2022, University of Cienfuegos, Carlos Rafael Rodriguez. All rights reserved.
2022
,
López Soria, Yudith
,
Sánchez Oviedo, Danny Xavier
,
Cajas Pérez, J.L.
,
Ortiz Criollo, W.F.
Guilt is the last of the elements that locates the theory of crime in the structure of crime, according to the schools that are res-ponsible for its study. It is also the most vilified element. Multiple theories about guilt, the analysis of its structure, its different roles within criminal law and, in addition, its presence throughout the history of humanity, attribute different connotations to it, however, they suffer great emptiness today., as a structural element of the crime. Various authors consider that it should be extracted from Criminal Law. The objective was to argue that guilt, as a structural element of the crime, according to the Theory of Crime, is expendable. The research is of review and used the qualitative approach that uses theoretical methods such as historical-logical, analytical-synthetic and inductive-deductive, from the empirical level the review of documents to analyze the contributions of authors on the subject. It is concluded that it is one of the main criminal legal institutes, but it is poorly located and should not be in the Theory of crime and yes, in the theory of sentencing, because, precisely, it is the real support of this. © 2022, University of Cienfuegos, Carlos Rafael Rodriguez. All rights reserved.