Colorado Business and Legal Advices » The Objective Imputation Theory http://www.partidocolorado.org Complete Business and Legal Advices in Colorado Tue, 31 Jan 2012 06:28:03 +0000 en hourly 1 http://wordpress.org/?v=3.3 The Objective Imputation Theory : Basic Formula http://www.partidocolorado.org/the-objective-imputation-theory-basic-formula.htm http://www.partidocolorado.org/the-objective-imputation-theory-basic-formula.htm#comments Sun, 15 Aug 2010 17:57:02 +0000 Bernard Shaffer http://www.partidocolorado.org/?p=250 The basic formula that uses objective imputation is as follows:

“One result is objectively attributable, when the author has created a significant risk, which is done in the typical result in your particular configuration..”

According to this formula, to impute to the author the results objectively, it is necessary, in an objective and ex ante, be founded and established in that typically relevant risk behavior and that this risk was made in the typical result effectively produced. To account for the completed offense of result, it is necessary, then a first trial to determine ex ante whether the action of the author has created a typical risk or has raised the risk to the legally protected. This danger, which is determined ex ante is established according to the criterion of an objective observer, which should be placed in the position of acting subject, and that all his knowledge and policy options (criterion general social policy). A second evaluation is done ex post, after the occurrence of the result and determines whether they made the typical result in the realization of typical and relevant legal risk created by the action of the result. (Castillo, 2003, pp. 101-102).

Today there is unanimity in penal dogma is that verification of a causal link between action and result is not sufficient to attribute this result to the author of the action. In the process of purification and selection of legally relevant causal factors imposes the use of normative criteria drawn from the nature of criminal law, and in the plane to demarcate the legal relevance of causality.

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]]> http://www.partidocolorado.org/the-objective-imputation-theory-basic-formula.htm/feed 0 The Objective Imputation Theory : Objective Allocation http://www.partidocolorado.org/the-objective-imputation-theory-objective-allocation.htm http://www.partidocolorado.org/the-objective-imputation-theory-objective-allocation.htm#comments Thu, 12 Aug 2010 17:46:33 +0000 Bernard Shaffer http://www.partidocolorado.org/?p=248 The following will be discussed relevant aspects of the scope of the complaint, as well as different views of what is this theory.

It is generally accepted as a principle objective imputation that human action has created a legally undervalued and this risk has been made in the result. This requires, therefore, to ascertain: a) the action has created a risk (in the sense of equivalence of conditions): b) this risk is legally undervalued, c) has resulted in the completion of the typical result. (Larrauri, op.cit, p. 86).

The objective imputation theory deals with the determination of the properties and general objective of the alleged conduct, even though, from concepts to develop here in the particular case mentioned explicitly or implicitly, causation. Of course, not all concepts of objective attribution have the same importance in the special part. In particular, problems of causality in practice affect only the crimes resulted in the strict sense. Especially in the crimes of result shows the need to develop general rules of attribution objective for the following reason: the law refers only to the causation of an outcome, but the causation may be sufficient only if it is legally essential.

The essential character requires not only when it appears, in relation to the subjective type, the result was not subjectively no longer avoidable but when the author is not responsible for that to which it gives rise. Example: The organizer of a festival is not responsible for the various offenses that take place during it (drug trafficking, injuries, injuries, drunk driving, hospitality establishments out without paying the drinks), or at least no longer responsible for the mere fact of having organized the festival. (Jakobs, op.cit, p. 98).

The fundamental legal issue is not verification of the causal link in itself, but to establish the criteria according to which particular outcome we attribute to a person. Only one outcome is objectively attributable caused by human action, when such action has created a danger that was deprecated legally performed in the typical result. (Berdugo, op. Cit, p. 200).

The objection in the result is an implied requirement of the type (section objective) in the crimes of result to be legally attributed the result and has therefore consummation. (Luzon Peña, p. 376).

The theory of the complaint seeks to confirm objective legal causation through a series of normative criteria described in the following formula: one outcome is objectively attributable only when the action causing the same risk has created a legally disapproved (or typically relevant) that was carried out in a typical result, which belongs to the scope or protection of the rule infringed. (Romero Sanchez et al, 2009, p. 196).

Only one outcome is objectively attributable caused by human action (in the sense of the theory of the condition) when such action has created a danger that was deprecated legally performed in the typical result. (Jescheck, 2002, p. 171).

Objective is called imputation to that which defines criminal responsibility for an outcome and the target rate.

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]]> http://www.partidocolorado.org/the-objective-imputation-theory-objective-allocation.htm/feed 0 Theory of causation http://www.partidocolorado.org/theory-of-causation.htm http://www.partidocolorado.org/theory-of-causation.htm#comments Mon, 09 Aug 2010 17:36:06 +0000 Bernard Shaffer http://www.partidocolorado.org/?p=244 Relevant theory of causation

For this theory, the cause is just to delete that condition which leads to the disappearance mind the outcome, just as the latter is understood as a legal category. Mezguer considers that criminal law is only interested in causes that are adequate to produce the result, however for him, the determination of the adequacy of the case operates in a strictly legal level, based on the criminal. To Mezguer causal equivalence of all conditions does not imply its legal equivalent, thus separating the phenomena of causation and responsibility. (Vargas Gonzalez et al, op.cit, p. 48).

And criminal responsibility will rest on three conditions:

1. Causal link between action and result.

2. Relevance of causation.

3. Guilt.

Causal link between action and result

The existence of the connection is determined by the same formula proposed by the theory of equivalence. The action of the author must be a conditio sine qua non of the result. There must be the first event of the complaint objectively, I have studied the second.

Relevance of causation

Such relevance is determined from the level of criminality. It requires the action of the subject which operated as a conditio sine qua non and the results produced are typical, as well as the causal course between one and another is “relevant” according to the type. To determine a relevant character assumes the criterion of the adequacy of the theory itself of adequate cause. The nature of the adjustment is determined from the offense, which shows us the causative courses relevant or appropriate. (Vargas Gonzalez et al, op.cit, pp. 49-51).

Theory of the prohibition to return

This theory, which in its infancy, is linked to the interruption theory of causation, is raised by Frank and implies that if causal courses of action are not exploited by malicious intentional action to cause the result, is barred from returning … more behind the malicious action to find reasons not malicious. Here improperly shuffled assessment criteria as causal problem, to the point that this theory points since the previous actions are not authorship but reckless participation, but also rejects them as causes. Apart from its impropriety as causal theory, and in the field of partner in crime should be noted that the mere participation goes unpunished reckless whether intentionally encourages authorship as reckless. (Luzon Peña, p. 72).

Causality is not “interrupted” because between the conduct and outcome, the action is malicious third party. That’s what formerly defended the theory of re-entry ban, she said, the return (return) to the conditions that preceded an intentional crime temporarily.

This theory was originally constructed on the basis of the causal theory of action, the rationale is that the remote causes (“remote cause”) are “void” then by who intentionally cause the outcome (“proximate cause”) and solves this how the problem of concurrent causes from different subjects when a single result. Put another way, the willful participation in the conduct willful and self-responsible of the crime is always with impunity, so that the second fraudulent act takes away the first show its relevance willful criminal. For these authors, the setting of preconditions to the result, so malicious, it involves making a crime in immediate authorship, but it is sanctioned, usually as participation (instigation or complicity). (Castillo, 2008, pp. 490-491).

Theory of causation

It is the foundation of any claim to such objective: for the first budget of the realization of the type is always the perpetrator caused the result. But with the causation of behavior for the typical result has not yet been performed, provided the type as previously believed, but attend other elements typical writings. Thus eg the complaint may also be missing although the author has caused the result, but that causation is due to chance: If A persuades B to take a flight to Mallorca, which B dies plane crash certainly A has caused B’s death and his council, but despite that B has not killed because the event is presented as an accident incalculable and therefore can not be attributed to as his work. There are also random with other causes that can exclude the target rate. (Roxin, op.cit, p.121).

Within it is the so-called theory of causation interruption which holds that in certain courses or irregular cumulative causal intervention of an “external factor” although causal support in the course before, immediately leads to the result, breaking the previous course causal, and therefore the results may not be devolved to the first author. An example: when a person has been injured dies as a result of surgery or wrong because the ambulance crashes that carried to the hospital. (Vargas Gonzalez et al, op.cit, p.39).

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]]> http://www.partidocolorado.org/theory-of-causation.htm/feed 1 Individualizing theories, Theory of the adequacy, and Adequate theory of causation http://www.partidocolorado.org/individualizing-theories-theory-of-the-adequacy-and-adequate-theory-of-causation.htm http://www.partidocolorado.org/individualizing-theories-theory-of-the-adequacy-and-adequate-theory-of-causation.htm#comments Fri, 06 Aug 2010 17:28:51 +0000 Bernard Shaffer http://www.partidocolorado.org/?p=242 Individualizing theories

With this name is sought to package a set of criteria that limit the extent of chasing the equivalence of conditions. It aims to select in each case the factor is decisive in achieving the result and differentiating between cause and conditions. The conditions are considered mere circumstances companions. One cause could be the most effective condition or the last condition that precedes the outcome or the most predominant or decisive response is considered its essence and manifestation. (Vargas Gonzalez et al, 1998, pp. 41-42).

Theory of the adequacy

The most important attempt to limit causality attributable to objectively was carried out through the theory of adequacy.

The theory of adequacy does not replace the equivalence, but only removes the equivalence of all conditions. According to the theory of adequacy, a causation is only legally relevant but it is not unlikely. (Jakobs, op. P. 107).

In the legal sense, only causal criminal conduct that has a general tendency to cause the typical result, while the conditions that have triggered only by chance the result is legally relevant. (Jakobs, op. P. 131).

According to the theory of adequacy is not any condition of the result is due in a legal sense, but only that which is normally adequate to produce the result. The determination of adequacy is shaped by the objective probability or predictability of the outcome production. Ie if the condition is suitable also for the prudent and objective man, since at the time of action (ex ante) with all the knowledge of the situation that the author had to act or should have had, understood that was objectively likely or foreseeable that such a typical result is produced. (Berdugo, op.cit. P. 199).

Adequate theory of causation

Described by Von Bar, Massari and, with some variations and other names and Grispigni Antolisei, Italy. Also called the causality typically means that the existence of causality requires that the agent has been identified or produced the result in a proportionate and appropriate behavior. (Ibanez, op.cit. P. 275).

On the other hand argues that this doctrine so that there is a causal link in the sense of law, it is necessary that the man has determined the result with an action will provide adequate. The fundamental consequence of the theory is not considered due to the effects of the agent at the time of action is improbable, ie effects of extraordinary or unusual action itself. (Antolisei, op.cit, p. 295).

Not every condition that produces a result can be considered because of it, but only that which produces a result can be considered because of it, but only that which is in line with experience appropriate to produce a typical result. To know when you are in the presence of an adequate cause, conducting a trial of probability by the judge, who must be at the moment of action. This trial is based on two types of knowledge, the ontological, which takes into account the conditions known and knowable by a wise man, and the expertise of authors, the nomological which incorporates the laws of nature known at the time of the action . Based on this trial is ultimately determined that the cause objectively foreseeable that appears adequate to produce the result. (Larrauri, op.cit, p. 83).

Finally, it is important to note that this theory is the need to recognize that a phenomenon is always a product of the confluence of a number of circumstances, without whose joint operation can not be explained, again, highlights the need to distinguish between cause and conditions, considering not only causes the condition is adequate to produce the result, and the compliance is affirmed or denied as expected or may not be such a factor that could cause the result.

How to determine the proper cause? Such a view likely to consider those conditions that at the time of action are “known and knowable” by a wise man. We must also include the expertise of the offenders. (Vargas Gonzalez et al, op.cit, pp. 43-44).

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]]> http://www.partidocolorado.org/individualizing-theories-theory-of-the-adequacy-and-adequate-theory-of-causation.htm/feed 2 Theories of Causation : Theory of Equivalence of Conditions (part II) http://www.partidocolorado.org/theories-of-causation-theory-of-equivalence-of-conditions-part-ii.htm http://www.partidocolorado.org/theories-of-causation-theory-of-equivalence-of-conditions-part-ii.htm#comments Tue, 03 Aug 2010 17:21:00 +0000 Bernard Shaffer http://www.partidocolorado.org/?p=239
This theory is called theory of conditio sine qua non, understood the Latin “essential” or “precondition”, the formula conditio sine qua non is a mechanism to assign a cause factor category. The conditio sine qua non means that an event causes a result, when you mentally can not be deleted without the mentioned result disappears (Reyes Alvarado, op.cit, p.10).

For example in the case of occurrence of an assault on a bench, if mentally suppress the incursion of armed robbery offenders and stolen money doing, removed a result of the divestment to configure the robbery. It would not even remotely in mind, the causation of the outcome by the manager who opened the bank that morning. (Vargas Gonzalez et al, op.cit, pp. 35-36).

The theory of equivalence states that all conditions produced conditions of nature or of human actions are equivalent and therefore causes the result.

In criminal law what matters is whether the outcome was caused by human action. This question is answered by applying the magic formula, the traditional doctrine of the conditio sine qua non, also called hypothetical mental suppression. The formula used to establish the empirical link of causality and them is a logical process of eliminating, through a process of abstraction, the action of the author and see if it holds the result. One result is caused by an act when the action can not be suppressed mentally, without the result disappears.

Finally, for the theory of conditio sine qua non called Von Buri, German criminologist who first enunciated in the fields of law, must be considered because any individual conditions of the result, which is the whole history without the result would not have verified. Therefore, in order to give sufficient causal relationship that man has made the outcome of any such condition, it is, in other words, who has acted an indispensable background to produce the result. (Antolisei, 2002, p.295).

This theory also called theory of the condition which assumes that because the outcome is any condition that has been involved in production irrespective of their degree of temporal proximity. For this reason, the theory is also known as the “Theory of equivalence” as all the conditions of the result are considered equivalent. Find out whether conduct has causal condition is resolved results using the following hypothesis: it is causal status of an outcome all that, delete mentally, would destroy the result. (Berdugo, op. Cit, p. 199).

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]]> http://www.partidocolorado.org/theories-of-causation-theory-of-equivalence-of-conditions-part-ii.htm/feed 0 Theories of Causation : Theory of Equivalence of Conditions http://www.partidocolorado.org/theories-of-causation-theory-of-equivalence-of-conditions.htm http://www.partidocolorado.org/theories-of-causation-theory-of-equivalence-of-conditions.htm#comments Fri, 30 Jul 2010 00:54:43 +0000 Bernard Shaffer http://www.partidocolorado.org/?p=233 This Article part of The Objective Imputation Theory in Criminal Law Series

Among the theories of causation that more importance have, we have the following:
v Theory of equivalence of conditions.
v Individualizing theories.
v Theory of adequacy.
v Theory of adequate causation.
v Relevant theory of causation.
v Theory the ban back.
v Theory of causation.

The following explains the main features of each of the theories mentioned above.

Theory of equivalence of conditions

The theory of the equivalence of conditions is becoming known in Germany from 1843, with Stuart Mall Years later the theory is developed by Von Buri in 1873. Von Buri understand that not only the sum of a variety of elements is cause of a phenomenon, but also each of these forces individually considered in turn causes an outcome. (Reyes Alvarado, op.cit, p.41). The doctrine of the time came to explain that all conditions for the production of an outcome is both the cause of it, so any condition is equivalent to a cause and then comes, just the name of the theory. (Vargas Gonzalez et al, 1998, p.34).

According to this theory, a result causes any negative or positive condition involved in the production of a result, all may be considered because of it, making it impossible to differences between causes and conditions. The procedure to determine when in the presence of a cause is the conditio sine qua non, which states that if certain condition mentally deleted and the result disappears, the condition causes the same conditions (without which the result has not been produced). (Larrauri, 2002, p. 82).

The theory of the equivalence of conditions, works in most cases with the formula that should be considered because any condition of a result that can not be suppressed mentally disappears without concrete results, ie because it is valid as all conditio sine qua non, without which all would not have produced the result. So eg, if a motorist driving drunk can not control your vehicle or invade the other side of the road, which produces a collision with another car coming from the front, having consumed alcohol is causal with respect to that accident, but if you delete it mentally, the driver of the car had continued on the correct side of the road and the accident had taken place.

And according to that same formula, are also causes of both car manufacturers and also others which have led to the conduct of both, and a further accumulation of circumstances that have influenced the event (eg, construction of the road The invention of the engine, etc..). Therefore not made any selection among the numerous conditions of any outcome, but instead are considered equivalent (so the same value) all the conditions and the equivalence trial owes its name to the theory of equivalence. (Roxin, 2002, pp. 122-123).

This theory of the view that any outcome is determined and verified by a set of causal antecedents. Therefore, the cause is the combination of causal antecedents. Therefore, the cause is the combination of conditions or antecedents that have contributed to the causal production of the result. In other words, as outlined before the cause is the combination of background and necessary and sufficient conditions to produce the result, but as Von Buri, could be caused by each of the conditions, provided that she does not present as a condition without which each of the conditions, provided it is presented as a condition without which the outcome had not occurred because each of the antecedents or conditions of the result of equal value. Hence the name of theory of equivalence. (Ibáñez, 2002, p-275).

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]]> http://www.partidocolorado.org/theories-of-causation-theory-of-equivalence-of-conditions.htm/feed 5 The Objective Imputation Theory in Criminal Law : Types of Causation http://www.partidocolorado.org/the-objective-imputation-theory-in-criminal-law-types-of-causation.htm http://www.partidocolorado.org/the-objective-imputation-theory-in-criminal-law-types-of-causation.htm#comments Tue, 27 Jul 2010 19:47:11 +0000 Bernard Shaffer http://www.partidocolorado.org/?p=231 In most cases, the existence of causation is not problematic. If A throws a stone vase intentionally against B and destroys it, there is no doubt that the operations of A (throwing the stone) and the typical result (intentional destruction of the vase of B), there is a causal link.

However, there are several types of causality that can present problems:

- Causation alternative: Several independent conditions acting together, each one of them sufficient to produce the result. All of them are effective while for the result. For example: A and B independently give each other, one dose of deadly poison that acts the same time.

- Cumulative Causation: In this case, several conditions independently act through joint action in the result. For example: A and B are independently each other a poison to C, which acts lethally on him because of the joint operation of the two doses.

- Courses causal atypical: It produces a result for a cause that is attached to the action. For example: A injures B. The doctor C, which caters to B, makes a medical error (malpractice), for which B dies.

- Causation hypothetical: Another cause could have caused the same time the result. For example: A gives B a lethal dose of poison. B would have died even without the dose of poison at the same time point.

- Cases of causality interrupted or broken: In these cases there is an independent intervening event preclude the existence of the previous causality, so that it is no longer operational. For example: A food poisoning B. Before the poison takes effect, C killed by a bullet to B.

- Support for a causal process and implemented: In this case, a hazard that already exists. For example: A, before the imminence of a train crash in the lane in which he found that would produce injured, he wandered to another lane, in which also produces shocks and shock injuries. (Castillo, 2003, pp. 43-55).

- Causation advance: Opera in cases where two or more behaviors are directed to the same end, but one is ahead of the others and produces first results. The problems of causation advanced was easily resolved with natural logic: “One of the conduct of behavior was the result displayed so that those actions that” almost “what caused and are quite irrelevant from the point of causal view and we are also from the standpoint of criminal responsibility for the outcome, because if you clearly define the causal link with one of them, the other takes a back seat. If not able to determine the producing agent of the result, should apply the principle in dubio pro reo. (Vargas Gonzalez et al, 1998, p.57).

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]]> http://www.partidocolorado.org/the-objective-imputation-theory-in-criminal-law-types-of-causation.htm/feed 0 The Objective Imputation Theory in Criminal Law : Causality http://www.partidocolorado.org/the-objective-imputation-theory-in-criminal-law-causality.htm http://www.partidocolorado.org/the-objective-imputation-theory-in-criminal-law-causality.htm#comments Sat, 24 Jul 2010 19:40:47 +0000 Bernard Shaffer http://www.partidocolorado.org/?p=226 Causality

The principle that causes all remains a result is called the principle of causality and the link that connects the cause and the result is called causality.

To attribute a result to a specific behavior, is required to establish firstly, if between this action and this outcome there is a causal link from a natural perspective, however, has not yet solved the problem, it is also necessary determine that the natural link of interest to criminal law</a>. However, that case is to formulate a legal opinion, also known as imputation trial objective. Checking the existence of causation is the first step of objective imputation. (Berdugo, 2002, p. 196).

Furthermore causality is defined as the process by which the complaint comes with several conditions, the causal link between the conduct and outcome criminally reprehensible, without being the only condition for such criticism, it should be taken into account author’s intention, the degree of accountability at the time of committing the act, exempting from liability, etc., all within a “subjective complaint” of the result. The main problem that may face the judge is not aware enough to know if the causal relationship is met in a given case, because this right outside the natural sciences may be involved in the case study. (Vargas Gonzalez et al, 1998, pp. 55-56).

Then the judge will have to adhere to the fore the so-called generic causation. This implies that [...] the development of causal laws is a scientific problem whose task it is for each particular branch of knowledge [...] in a judicial proceeding can only be taken as demonstrating the existence of a causal law in the relevant science, permits this. (Reyes Alvarado, 1994, p.41).

Once the process is achieved by determining the scientific causal law, the judge comes to the so-called specific causation where appropriate to assess whether the conduct of the defendant adheres to the scientific causality caused the result, in which case other assessments prior the penalty will be imposed for the crime committed. (Vargas Gonzalez et al, 1998, p.56).

Bear in mind that causality is only the minimum requirement of objective imputation of the outcome, it still must be added the legal significance of the causal relationship between action and result, of course, the causal relevance of the courses is not limited objective but also the requirement of a subjective aspect of fact, consistently, has a limiting effect. (Jakobs, 2002, p. 107).

Clearly the importance of causality in the theory of objective imputation, all criminal behavior is always an outcome and hence is attributable, as well as a physical phenomenon, the behavior will always produce a result. (Vargas Gonzalez et al, 1998 , pp. 54-55).

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We all know that in Criminal Law Concept, one of the most interesting is about the objective imputation. The origins of the idea of imputation can be traced, in principle, the so-called theory of charging of the natural law philosopher Samuel Pufendorf, for the word Zurechnunges, in reality only a translation of the Latin word imputatio. However, as a precursor to the current theory of the complaint contained factual law idealist philosophy of Hegel. The objective of the concept of action back to Hegel and developed by the Hegelian school of the nineteenth century was attributable to the subject of multiple causal courses, only what can be considered as his work, that is, as the formation of the world through individual. Honig in 1930 published the famous book “Tribute to Frank, an article that was obviously inspired by the review of the theory of Hegel.

In that article Honig resorted to “objective perseguibilidad a purpose” to eliminate causal courses guided by chance and she excelled in the decisive test of a “self-judgment complaint” completely independent of the causal view. Fault that would only result that can be deemed to have occurred “to serve the purposes.” Honig used as an example the case made by Traeger and to this day is constantly repeated that someone sends to her nephew who wants to inherit, to a mountain village of tall trees in the middle of a storm, hoping it dies hit by a lightning.

Honig expressly completed category Natural law of causality by normative category of “objective imputation” characterizing the result as the subject of the complaint and acting as the subject: the result of the action must be attributable.

As already stated, the concept of imputation Honig objective was pursued only one year later, in 1931 and then in 1939, for two fundamental works, two prominent authors from each other and did not use the term “objective imputation” , but if treated as an issue and continued to develop. It mentions the fundamental monograph Engisch on “Die Merkmale der als Kausalität Tatbestände strafrech Tlicho, as well as the” Studien zum System des Strafrechts “of Welzel 1939. (Schünemann, 2002, p. 209-210).

A Roxin is the great contribution to purge all vestiges ontological theory and develop the so-called principle of risk. (Berdugo, 2002, p.200).

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