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Schünemann, Bernd (2018): Dominio sobre la vulnerabilidad del bien jurídico o infracción del deber en los delitos especiales. In: Derecho Pucp, No. 81: pp. 93-112 [PDF, 205kB]

Abstract

What is the basis of the crimes perpetrated by State officials (special delicts)? The answer to this question was not always important in the history of the penal doctrine, because only from the work of Claus Roxin was renewed the debate on this type of crimes. The different positions in discussion take their arguments back to the very same concept of a punishable act, whether it is understood as the injury of an interest or as the injury to the validity of the rule. Peru has not been a scenario alien to this debate, since the arguments of the various Supreme Court rulings in the proceedings against Fujimori give proof of this. In this article, it is argued that most special delicts should be understood as special guarantor crimes, because their authors, far from violating a duty, actually have control over the vulnerability of an interest, or over the supervision of a source of danger This position, which starts from understanding crime as the injury of a legal right, considers that the margin of crimes of duty infringement is very reduced and, most of the times, it does not receive a criminal response. In this way, the position led by Gunther Jakobs, which understands crime as an injury to the validity of the rule and, therefore, to special delicts, such as those based on the violation of a special institutional duty, suffers from two conceptual vacuums. On the one hand, it has not been able to outline a necessary differentiation between internal and external duties of an institution. On the other hand, it has not been able to explain why or how the individual injury of an institutional duty could harm the institution as a whole. Finally, we analyze the consequences of these approaches for the dogmatics of authorship and participation, the advantages and disadvantages of the reception of these perspective in the Peruvian and German legal systems;as well as, the validity of functionalism and the problem of private participant.

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