La omisión impropia : necesidad o no de una cláusula de equiparación

Abstract

The criminal law faces a problem with improper omissions, where the conduct in question falls within an element of the second part of the Penal Code, and it is not an action, but a failure to act. We investigate whether that conduct is sufficiently analogous to fall within the second part of the legislation, or if we need a clause from the general part of the code, to classify the consequences of the omission within the boundaries of an illegal action. We conclude that it is necessary to use a clause. The traditional method uses a formal definition of a duty of care, opening the floodgates for prosecution of omissions analogous to the provisions set out in the code, although they are materially different to the actions. This clause should be constructed differently, as a clause of identification, using a definition that helps to find the identity between the material elements of actions and omissions.