THEORY OF THE DOMAIN OF THE FACT

I-INTRODUCTION

Frequently the crime is not the work of a single person, since there are cases in which many active subjects participate in its commission, which has led legal dogmatics to make a distinction between the degrees of participation of each of them, to determine their responsibility in accordance with the principle of proportionality, trying to appreciate the contribution that each subject makes to the unjust act.

Our legislation regulates the responsibility of authors, accomplices and instigators, establishing a differentiated criminal response treatment for each of the active subjects involved in the commission of the crime.

Taking into account that the legislative technique used in the aforementioned provisions incurs criminal liability for the crime committed, the authors, the instigators and the accomplices, it is up to the enforcer of justice to determine in each specific case, when we are in the presence of authors or participants. (accomplices and instigators).

Which is not an easy task, taking into account the centuries-old doctrinal discussion on the theories that have been outlined to determine when we are in the presence of each other. Some of them have been overcome, others, with many criticisms, have revolutionized the concepts, but currently there is consensus that the Fact Domain Theory is the one that best explains their differences.

II-SYSTEMS AND THEORIES FOR TREATMENT OF THE PLURALITY OF ACTIVE SUBJECTS

The issue of the concurrence of several people as active subjects of an offense can be addressed by criminal law, based on two systems :

-a-Unitary-The author is the one who makes a causal contribution to the fact, no matter how minimal. That is to say, it considers all those who, in one way or another, to carry out the unlawful act as perpetrators, no matter how small their participation may be, and regardless of the legal assessment of the conduct of the other participants.

Currently, the approaches of the unitary theory are used for culpable types, and any participation in this type of crime is culpable authorship.

-b-Differentiator-Calls for differentiated treatment of the different roles played by those who take part in the crime and the demands for greater legal certainty.

III-SUBJECTIVE THEORY

The Theory of Equivalence of Conditions - It took for granted that the contributions of all those involved in the event who had a causal relationship with the result, made them authors.

Example-A gives a weapon to B, so that he can injure C; Therefore, for this theory, both A and B are considered perpetrators of the crime of injuries.

The foundation of this position, maintained as Subjective Theory, is the theory of the equivalence of conditions and has as a necessary complement the subjective theory of participation.

This Subjective Theory-Considers that the author is anyone who has set a condition for the accusation of the typical result, but this can also be said of those who only provide insignificant collaboration, in such a way that the concept of author is extraordinarily extended.

This concept admits that the law requires us to distinguish different degrees of responsibility. As a consequence, the legal types of participation emerge as causes for limiting the penalty. If this were not the case, all those involved would have to be punished as authors.

It is criticized because it transforms the author into a residual concept that is obtained by exclusion, since only those who do not present the characteristics indicated by the law to be considered an accomplice or instigator will be. It is so extensive that it can encompass any person and constitute a danger of giving up the typical delimitation of the action of the crime. This conception also lacks an objective basis to draw the difference between author and participant, which is why to overcome these difficulties they resorted to a subjective complement.

With the support of this Subjective Theory :

-a-The distinction between author and participant is found in the intention of the subject, in his spirit.

-b-It is considered :

-b1-Author-The subject who acts with such will, wants the fact as his own or has an interest in the result,

-b2-And participant-Whoever acts with the will of such, wants the fact as someone else's and has no interest of his own.

This position was not without criticism and it was stated that the spirit has neither legal reality nor normative reality and if we are guided by a formula of pure spirit there is a danger of reaching the extreme of not taking into account the factual reality: that the author , has executed a typical action, which is a contrast to the principle of legality.

IV-OBJECTIVE THEORIES

It is possible to distinguish three directions :

-a-Theory Formal Objective-The decisive thing is the performance of all or some of the executive acts expressly provided for (literally) in the legal type.

They start from the typical description to distinguish the author from the participant, the author being the one whose behavior can be appreciated as clear verification of the type.

It has drawbacks when facing mediate authorship, since the agent does not directly carry out the action but rather uses an instrument (person) to do it.

According to this theory, the author would be the instrument that materially carries out the action, which could be an unimpeachable person, a coerced person or a person who is immersed in an error; Likewise, it has the disadvantage that would arise in the case of co-authorship; example: in the crime of robbery, this is configured when violence and theft are used, technically the perpetrator has to carry out both behaviors because if one person exercises violence and another steals, no one would be the perpetrator of theft.

In summary, the formal objective theory is unlimited in purely resultive crimes and excessively limited in determined average crimes.

-b-Material Objective Theory-This theory tries to correct the errors of the formal objective theory by referring to a material criterion beyond the mere typical description, although part of the objective contribution of the subjects to the fact, maintains that there are more contributions important than others, in a certain way the theory of efficient cause applies.

That is, according to this theory, the author is the one who makes the most important contribution, the one who makes the event more dangerous.

One of the points to be discussed refers to the contributions to the configuration of the crime, since there may be cases in which the contributions of an accomplice determine or are as important as that of the author. Furthermore, this theory has problems regarding the mediated author because he does not have objective contributions.

-c-And theory of domain of fact.

V-THEORY OF THE DOMAIN OF THE FACT

A variety of the objective theory is the fact domain theory, which can be regarded as a material-objective theory. For the Theory of Domain of the Fact, the author is the one who has the final control of the event, while the participants for their part lack that possibility.

It is a synthesis of objective and subjective factors. Thus, the commission of the crime depends on the control that the agent has over the development of the action and its consummation.

The main consequences of the fact domain theory are :

-a-Domain of the action-The author is the one who executes all the elements of the type.

-b-Domain of the will-The author is the one who executes the act using another as an instrument.

-c-Functional domain of the fact-The author is the one who carries out a necessary part of the execution of the global plan; although it is not a typical act in the strict sense, but participating in the common criminal resolution.

Criteria to take into account :

-a-The course and result of the event depend decisively on his will-The agent has an internal relationship with the event, which is manifested in the "joint control of the course of events."

This idea is very helpful in determining the existence of co-authorship.

As we know, the will directs the behavior of the agents, but it only becomes influential if the agent fulfills an objectively significant function in the realization of the type.

-b-The ability to do, continue and prevent-This idea is supported by Professor Maurach, who uses this formula to characterize the domain of the fact in general and to determine more precisely co-authorship in particular.

It is proposed that each agent has a necessary role in the commission of the crime so that, if he or she desists, it can cause the plan to fail.

-c-The possibility of giving the event the decisive turn-That is, the agent has and is in full control of the fact, so he can give it a decisive turn.

This position is verified in crimes of omission in which the agent has the possibility of preventing the result.

In other words, it does not matter if the subject, by actively intervening, could have prevented the result, but conversely, if the one who remained inactive has stopped the event that was developing or has decisively modified it.

-d-The power over the fact-One must pay attention to the physical possibilities or technical abilities of the agent and accordingly see if they dominate the final direction of the causal course in reality.

The inability to carry out the type of one's own hand does not exclude the mastery of the fact, which is demonstrated in both mediate authorship and co-authorship.

What we must emphasize is that the mere will of the author or control of the fact, the internal disposition, is not enough to establish authorship.

-e-The subordination of the will-The theory of fraud is also correct as a theory of control of the fact, to the extent that it captures that the participant has to make the event depend on the will of the author, leaving it to his discretion.

A subject is not a participant because he has left the execution of the act to the discretion of the other. because it has control over the event.

The subordination of the will is the psychic reflection of objective relations of dominance.

-f-Will to control the fact and feeling of authorship-The author must know the factual circumstances, and also be aware of the facts that support his control over the event, that is, there is fundamental knowledge of the domain