Browsing by Author "Aguilar Silva, Angelica Maria"

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    La determinación judicial de la pena por debajo del mínimo legal en la tentativa de delitos
    (Universidad Nacional de Trujillo, 2015) Aguilar Silva, Angelica Maria; Cango Miranda, Carolan Milena
    Regarding judicial sentencing argues that requires a basic regulatory framework, which is built based on a set of guiding principles or management policies that guide the decisions of the legislator or judge to legal configuration or procedural fair and rational application of penalties. Meet such criminal political role guiding principles (principle of proportionality, the principle of humanity, the principle of guilt, rule of law and the precautionary principle), therefore, judicial sentencing is activity that develops the national operator to identify such qualitative and quantitative, that is, the punishment imponer in the case sub judice. That is, through it proceed to evaluate and decide on the type, extent and manner of execution of sentence, security measure or side-effect that may apply to the case. With regard to the theory of the crime is reported to be the conceptual tool that has the task to clarify and develop all questions regarding the offense thus laying the foundation for a fair and equal administration of justice, as just understanding the internal connections of Law released its application of chance and arbitrariness. The theory of crime guarantor fulfills a function, since its scope includes not only primary crime by the legislature, but also secondary, that is, the rational application of this theory. In turn, it gives us a reference point for criticism of deviations of judicial practice regarding the rule of law; thus, the theory of the crime or the criminal charges, should constitute a barrier to the violent intervention of criminal power. In addition, the complaint fulfills a communicative function in the social system. The same elements are: the typical, the unlawfulness and guilt. For the preparation of this work has been used, the inductive-deductive method, which has been used to draw conclusions from the research, that come to generalizations of the data; so, one conclusion has been achieved is that for our legal system to be effective in our society it is necessary that the jurídicosoperators "legislators and judges"-begin to distinguish between two legal concepts (attempt and an accomplished offense ), so in this way can normativizar uniform criteria which will be applied by the courts when the courts determine the penalty in the attempted crime and thus reach establish the circumstances in which they are to impose a sentence below the minimum legal in the attempted crime, all according to the mitigating and privileged circumstances, guiding principles and preventive purpose of punishment. Accordingly, we affirm that when we are dealing with a case of attempted crimes and that it is apparent extenuating circumstances, such as lack of criminal record, voluntarily repair the damage, the influences of urgent personal or family circumstances, age of the accused and other circumstances that may arise of the crime, and there are personal qualities that are part of special prevention; It must legally identify it below the legal minimum. Otherwise, not find within that hypothesis, but there turn mitigating and aggravating circumstances or just aggravating circumstances, would apply the requirements of Article 45- A. At work we have employed other methods as have been the legal hermeneutical method, which has been used in the interpretation of legal texts, in order to clarify the meaning and content of such a rule; also it will use-systematic analytical method which will allow us to analyze and synthesize the literature required the subject matter of work. Therefore, we note that when we face and privileged mitigating circumstances, our law should adjudicate penalty below the legal minimum in the attempted crime, based on the guiding principles of sentencing and the special preventive purpose penalty.