THE THEORY OF DETERMINATION OF THE PENALTY CLAIMS GUILT IN ITS STRUCTURE

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.