OUTLINE ON mismanagement.
A. Mismanagement.
1. Chapter IV scams and other frauds Article 172. - Shall be punishable with imprisonment from one month to six years, who shall defraud another assumed name, quality simulated, false titles, lied influence, breach of trust or seeming goods, credit, commission, company or trading or using any other scheme or deception.
2. Text of Article 173 CP Inc. 7 "Notwithstanding the general provision of the preceding article shall be considered special cases of fraud and suffer the punishment that he states: ... 7 º. That by operation of law, the authority or by a legal act would be responsible for the management, administration or care of pecuniary interests or property of others, and to secure for himself or a third party an improper gain or to cause harm, violating their duties, would prejudice the interests entrusted or forces that abused the owner of these. "
3. texts on criminal participation. Article 45 .- Those who would take part in the execution of the act or provided to the author an aid or cooperation without which it could not have committed, have the penalty for the crime. incur the same penalty that had given another to commit it directly. Article 46 .- to cooperate in any other way to the execution of the act and providing subsequent aid to fulfilling earlier promises to it, shall be punished with the punishment for the offense, less than a third to half. If the penalty imposed is life imprisonment, imprisonment applies fifteen to twenty years and if it is life imprisonment, imprisonment apply ten to fifteen years. Article 47 .- If the particular circumstances of the case proves that the accused of complicity but refused to cooperate in fact less serious than that committed by the perpetrator, the penalty will be applied to an accomplice by reason only of the fact that he promised to run. If the act is not consummated, the penalty for accomplice determined in accordance with the provisions of this article and the title of the attempt. Article 48 .- The relationships, circumstances and personal qualities, whose effect is to diminish or exclude the penalty, but have no influence on the perpetrator or accomplice to those who apply. Nor will influence those whose effect is to aggravate the penalty, except in cases in which they are known by investors. Article 49 .- Do not be deemed participants in the crimes committed by the press people that only they render the author's written or recorded material cooperation necessary for publication, distribution or sale.
4. Legally protected. Is the property, taking into account both the systematic location of the crime (Book II, Title VI of the Criminal Code, entitled: "Crimes against property"), as its content, which focuses the object of protection in the "property or pecuniary interests of others." However, the doctrine, said that the relevant damage or injury is one that typically is on what we shall call "managed equity interest." In this regard, David Baigún and Salvador Bergel, after identifying the property as criminally protected content to the membership relation that mediates between the individual or entity and certain assets or rights of valuable consideration (1) and noted that the injury is the equivalent damage heritage, defined as the alteration or reduction of property or rights belonging to the owners of such property or rights, specify that the result of the action or typical injury occurs "Interests confident" (2). Fontan Balestra, shows that the loss should fall on the whole the author manages assets, requiring an identity of interests that are harmed and the object of attention (3). Alberto Millán, explains that the unjust is set to undermine the trust acquis (4), after noting that the injury is only asset, both for missing or damaged property, as creation of obligations abusive and depreciation things, goods or credit, making the clarification that the injury may take economic or financial nature (5). Soler, understood that the existence of prejudice resulting from the comparison of state property before and after the fraudulent transaction, which may include the fact also in an abusive imposition of obligations in which case there may be no longer an effective balance between assets and liabilities of the estate but a purely financial imbalance (6). Also of greater amplitude references on the subject typically performed Carlos Creus (7) and Juan Sproviero (8) who, in analyzing this element, refer to the heritage of others, without a specification of the lesion of specific interests entrusted. Obvious the radical importance of proper identification of this "managed equity interest", which identifies the actual content of the lesion which typically can be relevant in terms of the figure is under review. It should determine who within the managed heritage interest. the existence of two elements, the tangible and intangible, can be highlighted including a first and basic difference, since only the first belongs properly to the heritage of the taxpayer, as we shall see. The material element is formed by specific assets or rights that are the subject of administration, handling or care by the active subject. The intangible element that finds its counterpart in drafting legislation in reference to the violation of duty, has in turn shaped by the range of obligations imposed on the active subject, relating to the administration, care or management of these property or rights, and determine the true extent of the interest protected. Undoubtedly the latter element is critical for purposes of determining the adequacy of the criminal conduct in its provisions define whether such conduct falls into one of two ways confiscation of the punishable act: infidelity or abuse defraudatoria defraudatorio and also draw borders the real harm that the rule seeks to avoid. And complement combination of the two components arises cash for protection of the crime, aiming not only to avoid injury on the property or right in particular, but also the specific way in which it develops or can develop such injury .
5. JOINT BUDGET ADMINISTRATION OF CRIMINAL TYPE FRAUDULENTA.La rule under analysis is a common budget and ahead of the two actions punishable, I have already mentioned, have been identified by the doctrine as infidelity and abuse defraudatoria defraudatorio (9). This component describes the relationship between the active subject and the owner of the interests that are entrusted the first, since that role can only be played by who is in a certain position of guarantor, which has its source in three cases defined by the rule: 1) provision of the law, 2) provision of authority, 3) act Legal (10) and has been identified by Fontan Balestra as the possibility for the active individual to perform acts of available legitimate interests of others or to bind to another (11). It is precisely this normative budget which shows from the outset that set under analysis is a fraud and breach of trust, since the time of delivery or transfer of property upon which rests the criminal maneuver because it pre-exists the existence of a previous situation of trust (12).
6. PUNITIVE ACTIONS. As already noted, the offense of art. 173 inc. 7 provides two kinds of typical actions, for which we have adopted the names already known in our doctrine of infidelity defraudatoria (also called a breach of loyalty) and defraudatorio abuse. Has been discussed the relationship between the two types of actions, the more convincing position, in my opinion, is one that considers infidelity as generic action, which is a kind abuse (13). The reason is very simple: the abusive action, as we shall see, is characterized by its projection Internationally managed acquis, you need as a prerequisite in order to set up, breach of loyalty owed by the administrator, a disloyalty to the mandate, plotting, it is difficult to imagine that an administrator may contract by fraud or force in an abusive way (for example, by the inappropriate assumption of debt), if not previously obtained the confidence to access the ability or power management enabling it to conclude such acts, binding on the run. The breach of fidelity is typically referred to in the word "prejudice" and means to cause a deterioration in real estate or rights-managed, or managed care on behalf of the taxpayer. This typical behavior can also occur as negligent, and since this omission becomes relevant in the wake of criminal breach of duties characteristic of guarantor's position that the subject is active, is included within the category of improper omission omission or commission (14). As outlined above, where the conduct transcends unfaithful to the external field given stock, when he assumes or displays the status of any agreement or legal act, and implies a relationship of alterity, it is within the species defraudatorio abuse, that is correlated in drafting legislation in the expression "Abusive force." For its special characteristics, defraudatorio abuse can not be done by default, since the establishment of an abusive legal business development necessarily involves a positive action on the part of the active subject, which will result in the formation of a specific obligation.
7. Active subjects. Already advance that mismanagement is a special crime as the author, because only those who in some way hold the management, administration or care of property or pecuniary interests of others as a result of a provision of law, authority or by a legal act can be perpetrators of this crime, but this in no way affects any common law rules relating to participation punishable (accomplices, instigators, etc..) (15). The law provides for numerous civil and commercial cases in which asset management is the responsibility of certain people. In this sense, can be cited probate guardianship of art. VCCI 383., The legitimate protection of art. VCCI 389., Dative protection of art. VCCI 392., Among many other provisions relating to the institutions of guardianship and curatorship (16). Civil Code also arise functions in the administration of property held by executors (17) (arts. 3851, 3856, 3857, etc.) Rather striking to note that in this matter the executor is legally obliged to account to the heirs of his administration, as the art. VCCI 3868. In the commercial sphere assumption may be cited as legal source for bank directors to assume the representation of future debenture holders, pursuant to arts. 338 inc. 3, 344 and 347 of Law 19,550 (Corporations Act) (to 1984 THE 1984-A-46) (18). Pursuant to the authority can be understood that issued by any public official who in discharge of their duties and within the limits of its powers delegated to the active subject the administration, management or care of property or rights, defining the duties inherent this activity (19). Finally, the guarantor may be caused by a legal act, which is defined concept art. VCCI 944. as any lawful act done that with the immediate aim of producing the acquisition, modification, transfer or extinction of a right. In this sense, can take the relevant quality contracts that entail an obligation to manage, maintain or manage property of others (for example, mandates, certain types of locations or bailment, etc.)..
8. THE RAPE OF DUTIES. Doctrine has been identified in the formula used in the article "violating his duties" as a component of illegality that the legislature has added an element of type (20). This component undoubtedly is of particular importance, since defining the boundaries of punishable acts, because, as noted in a previous chapter, the regulatory counterpart intangible element of managed equity interest. For its part, clearly the close relationship of this element with the particular source of the guarantor, as it derived, in principle, the obligations imposed on the active subject. In that sense, it seems a matter of particular interest is the analysis of situations in which they were intentionally violated duties (meeting, of course, with the other typical requirements) were in turn clearly unfair to the taxpayer, especially when such duties they originated, for example, in an onerous contract: Can breaking them knowingly and with intent to profit as a result of such breach, despite his abusive nature? The answer goes beyond the limits of this work, so I will just make it clear the question.
9. SUBJECTIVE TYPE. The offense is willful mismanagement. The performance of acts of administration for a reckless neglect of duty of care inherent in the office or agency that is exercised resulting in injury to the property interests administered is not covered by the figure under discussion. Not in the private sector a figure similar to that for administrations public, includes 262 CPEN Art. "Wrongful misappropriation of public funds," which is punishable by any public official who, by carelessness or negligence, shall give opportunity to evade the funds or effects were found under his administration, custody or perception of the position because it has. The intent of the agent is properly defined in a recent ruling as knowledge in a manner detrimental to exceed the available power to act materially for another, requiring also a particular love of the author, consists of attempting to himself or a third party improper financial gain or to cause harm (21). The definition of particular case law reviewed importance, its proximity to the doctrinal trends which are oriented to minimize, to the point of exclusion, the volitional element of intent. Thus, the traditional definition of fraud that required for this, besides the representation or knowledge of the conduct of the type (cognitive element), also an element of will (the will) has been questioned by some dogmatic sector (22) . In this way, it has stressed that work with malice that knows what he does, knowing the real danger that generates its action, or who acts with malice who knows the action performed and its consequences. The intent, from this position, which has been called "Theory of representation" depends only on the author's knowledge of the specific danger of the realization of the type (23). Transferred this concept to the type of mismanagement will require the type subjective knowledge by the author that in their actions are beyond the powers of administration, management or care available depending on the source of his position guarantor. We found however in a subjective requirement express standard (24), referred to the purpose of seeking, or cause harm to the holder of managed equity interest. This subjective element configures a plus on fraud core characteristic, such as the subjective for configuration, require, in addition to the fraud defined in the preceding paragraph, the last element of will. In the literature there has been a debate on the possible configuration of conditional intent of mismanagement. Those who enroll in the negative thesis focus their reasoning on which the particular direction in the figure requires subjective analysis, when expressly states "to secure for himself or a third party an improper gain or to cause injury" , prevents the admissibility of potential fraud, indicating the uniqueness of direct deceit (25). Among those who admitted the fraud possible, the component of indifference is limited to the production of damage (26), which is logical as it is difficult to imagine a mere indifference to a will which is so characteristic as the profit motive is distinguished by being a specific purpose: one wants to make a profit or will not profit, in the typical terms ("to ..."). However, in light of the teachings of the theory of representation, which adhere understand that the crime of fraudulent administration, outlined to the differentiation between the nucleus of a typical fraud and specific mental element required by the standard in which there is a volitional component, the investigation concerning possible fraud should be limited to only to the subjective element of intent as the core characteristic, solved in terms of the theory in question, ignore the differences between casual and direct malice intent, which are centered precisely in the will that is traditionally attributed to fraud as one of its parties, and is rejected by this thesis.
10. THE BENEFIT. It is not necessary for the purposes of the consummation of the offense, that the active subject or a third party, obtain the benefit sought by the first, because as we have tried to make clear, the profit motive is one of the ways in which can translate the subjective element of this specific figure, but not part of the actus reus (27). So much so that the figure also can be accomplished, without having had the benefit of any kind, when the typical action is carried out only in order to cause damage to goods that are given, which is another way we can present the specific mental element.
11. The consent of the members. It is no excuse because what matters is the damage to the social interest of an entity that is different. Explain what the social interest.
12. Without the required quality to be an author, can not legally be a contributor. You can be part of the offense but not a contributor.
13. Corporate control in all its variants, could be involved in the figure of art. 173 paragraph 7 of the Code. Criminal. Handled outside interests by themselves or through other controlled them, in turn controlling the controlled mismanaged. View Hector Velez and Carlos Palacio Guillermo Laje in his paper entitled "Abuse of Corporate Control (Commercial and Criminal Analysis)" at the Tenth Congress of Argentine Corporate Law VI Latin American Congress on Corporate Law and Business, Volume IV, p. 90 et seq. It is interesting work and Palacio Vélez Laje respect to frame criminal abuse of corporate control. These authors explain that although there is no explicit definition for this illegal conduct, could be framed in the figure of fraud through mismanagement of Article 173 CP seventh paragraph, in the crimes of emptying company (Art. 174 CP Inc. and the 6th of the crime of misconduct authorization, Section 301 of the penal code. They said that in cases which could not be controlling framed directly in the criminal could be achieved by considered accomplices, through a form known as "incitement". The firebrand like the fact, say these authors, but they want committed by another. Therefore, "... in this form of participation criminal, the instigator influence the author to act in certain ways. "
14. The acts of illegal disposal are also included.
15. Competition -
a. 135 - The crime must be deemed committed in the place where you ran the unfaithful act. (16/04/1991 - Haro). Faults 314-283. (08/07/1990 - Cervantes). Faults 313-655. (10/29/1987 - Figueroa). 310-2235 failures. B.
136 - The crime must be deemed committed in the place where executes the unfaithful act prejudicial in violation of duty, and if that place is not known, we must presume that this has been carried out in the home of the administration, no obstetrician to this the fact that the company has its legal domicile in another jurisdiction. (07/02/1995 - Olive Day). (11/19/1991 - Regunaga). 314-1513 failures. (28/08/1986 - Hendler). 308-1372 failures. C.
137 - The crime must be investigated by the judge where the address of the administration, although the company has its legal domicile in another jurisdiction. (04/07/1988 - Lojo). Faults 311-458. (04/12/1988 - Security). Faults 311-484. (20/03/1980 - Cooperative Work and Housing The Naval Workers Union). Faults 302-182. D.
138 - The prosecution rests with the courts of the domicile of the administration, civilian or commercial. (03/20/1980 - Cooperative Work and Housing The Naval Workers Union). Faults 302-182. E.
139 - The prosecution rests with the courts of the domicile of the administration, although the injured party is a cooperative society registered with the Cooperative Department of the Ministry of Promotion and Community Assistance. (03/20/1980 - Cooperative Work and Housing The Naval Workers Union). Faults 302-182. F.
140 - is competent judge of the domicile of the administration, understood as that which met the president mandated negotiations. (07/03/1984 - Bodegas Giol FEIC). Faults 306-774. G.
141 - As an exception, when the infidel or harmful act consists in the surrender of a fake account to cause the error managed and consummate with it the loss of property, will be relevant to establishing jurisdiction, the place where the accounts should give, not mediating express agreement, shall be the domicile of administration. (08/28/1986 - Hendler). 308-1372 failures.
h. 142 - When the unfaithful act prejudicial in violation of the duty is to surrender to a fake account to cause the failure of the consummate survivor and thus the loss of property, will be relevant to establishing jurisdiction where the accounts were to surrender. (7 / 4 / 92 - Severus). Faults 315-627. I.
143 - The offense is consummated at the place where he presented the fraudulent accounting. (19/10/1962 - Moses). Faults 254-106. J.
144 - The infringement must be judged in the place where it should be accountability, which, mediating not otherwise provided, be deemed to be the home administration, or one where you meet the president mandated negotiations. (07/06/1979 - Azcarraga). Faults 301-471. K.
145 - The crime should be tried in the place to be accountability, which, mediating not otherwise provided, be understood located at the home of the administration, without necessarily having to match the address of the injured corporation . (03/13/1986 - Metropolitan Green Belt). Faults 308-274.
l. 146 - Being a warehouse manager who is alleged to have fraudulently disposed of effects whose custody had been entrusted to the criminal offense was committed in this reservoir, and not at the headquarters of the owner of the deposit. (14/06/1965 - Borovinsky). Faults 262-57.
m. 147 - When an employee is charged to have used the checks were delivered to purchase an automobile for business, acquiring its name, what matters is where the accused had to deliver the checks. (04/06/1991 - Valdivia). Faults 314-527.
n. 148 - It is assumed jurisdiction over the offense for which the trustee of a bankruptcy judge in the jurisdiction where the court is located where it should be accountable for their performance. (10/18/1988 - Goldaracena). 311-2098 failures.
o. 149 - up to provincial courts hear the alleged mismanagement of the directors of an institution financial and non-federal justice that any fraud known in the Central Bank, while the actions taken to conceal the actual financial status of the entity so as to obtain various benefits of the Central Bank, were made other than the specific behaviors that led the financial situation that sought to hide. (10/19/1989 - Salazar). 312-1942 failures.
p. 150 - not for the federal court hear the complaint against officers of a political grouping mismanagement in the handling of its funds, if you can not relate the facts investigated issues concerning the establishment and operation of a national political party and does not appear not affect service or assets of organizations linked to national elections. (19/10/1989 - Bussi). 312-1943 failures.
q. 151 - No federal court has jurisdiction to hear the crime alleged against members of the board of a union and employees of social work, as funds from the Institute of Social Work, Ministry of Social Welfare were incorporated into the heritage of social work. (09/12/1980 - Martinez). 302-1503 failures.
r. 152 - No federal court has jurisdiction to hear the offense for which the auditor of the provincial branch of a union, he can not be considered an employee of the Nation within the meaning of art. 3 inc. 3 law 48. (12/14/1982 - Blanca). 304-1848 failures.
s. Fraud and mismanagement - Home of the directors of the company - Committee of the crime in the place where executes the unfaithful act in violation of the duty, not knowing that presumably done in the homes of government, where they are accountable for the management carried out. Facts: We investigate the disappearance of the assets of the corporation, frustrating, in part, compliance with the conviction handed down in the labor cause. Ruling: The crime of theft by fraudulent administration (Article 173 paragraph 7 of the Penal Code), it should be done on site in implementing the act unfaithful in violation of the duty, thereby harming the economic interests of the company. Of that unknown, presumably done in the homes of administration, place in which to be generally accountable for the management carried out (*) "... but it would inhibit the fact that the company has its headquarters legal in another jurisdiction ...". Resolved to confirm the order states as territorial incompetence magistrate for the court which in turn corresponds with jurisdiction in the district of Moreno, Province of Buenos Aires. Judges: Lucini, Bruzzone. (Sec.: Williams) Type: Interlocutory Number: c. 32,723 Record: 32723_6Hechos: Defence appealed rejection of incompetence pose arguing that the conduct investigated constitute only one possible and hypothetical violation of the Law 22362, of Marks end whereby, by reason of the provisions of art. 33 of the aforementioned legislation, requested that the investigation continues by the federal courts. Failure: As in the framework of behavior, constitute prima facie the unjust provisions of art. 173, inc. CP 7 - would have committed the ownership of the trademark "Hospitality and Tourism", the linking of such episodes, by applying the rules of ideal-art contest. Noun-body 54 prevents the division of research (*). "It would be inseparable events with a dual legal framework (...) to be fulfilled by an ideal way, as both offenses have been committed simultaneously by a single behavior, and that when there is perfect competition between a common crime and a federal nature of this forum is that responsible for its investigation "(**). Therefore, due to the obvious connection, verified account of the particular characteristic of the courts of exception, it must be understood in the summary. Judges: Cicciaro, Bonorino Peró Pociello Argerich. ( Prosec. Cam.: Decarli) Type: Interlocutory
Number: c. 32,643 Record: 32643_7 Court of Appeals in Criminal and Correctional.
16. PRESCRIPTION OF CRIMINAL ACTION. - Article 66 .- The requirement of the sentence shall run from midnight the day on which the defendant is notified the final decision or from the breakdown of the sentence, if it had begun to be fulfilled. Article 67 .- The statute of limitations is suspended in cases of crimes for which prosecution is necessary to resolve questions before or submitted, which must be resolved in another trial. After the cause of the suspension, the requirement is ongoing. Prescription is also suspended in cases of crimes committed in the exercise of public functions, to all who have participated, as either of them is playing office. The course of prescription of prosecution for crimes under Articles 226 and 227 bis, be suspended until the restoration of constitutional order. The prescription is interrupted only by: a) the commission of another crime; b) The first call made to a person under judicial process, in order to receive a statement from the crime under investigation; c) The requirement adversarial opening or elevation view, made in the form that establishes the relevant procedural law; d) The writ of summons or procedural equivalent, and e) The issuance of a conviction, although it is not firm. (Paragraph substituted by Art. 1 ° of Law N ° 25,990 BO 11/01/2005). The prescription runs, is suspended or interrupted separately for each crime and each of its participants, except under the second paragraph of this article. (Paragraph substituted by Art. 1 ° of Law N ° 25,990 BO 11/01/2005). (Article substituted by art. 29 of Law No. 25,188 1/11/1999 BO. Duration: from the eight days since its publication.)
a. Called for questioning - No time-limit disruption. Facts: In the evidence pre-trial proceedings are cautioned that recent events have occurred and attributed defraudatorios the accused were in the months of November and December 2001, the call for investigation is from April 2003 to request a trial lifting of October 2006, under the penalty prescribed for the offense saddled (Arts. 172 and 173, CP Inc. 7), no has within the period specified in Art. 62, inc. 2, SC Ruling: If the legislature has not made any distinction about reducing the scale of punishment for the child participant and in cases of attempt, it has even used the same wording for both situations, there is no reason to justify departing from the arguments in plenary faults (*) (**). And all the rooms of the National Chamber of Criminal Appeal and before the amendment of Article 67 of the CP understood that the call to testify unsworn interrupted the course of the prescription. Confirm the order is for the decisional did not rise to the criminal statute of limitations applied. Judges: Pociello Argerich, Filozof, Rebori Garrigues. (Prosec. Cam.: Leo) Type: Interlocutory Number: c. 30,811 Record: 30811_5 Court of Appeals in Criminal and Correctional .- C. Nat Crim. and Corr, 4th room 11/10/2001 Garcia, Edgardo, Buenos Aires, October 11, 2001. Dr. Gerome said this incident comes to study the court, has been granted under the two separate appeals brought by the prosecution and the complaint against the order issued by the 1 st Instance, which upheld the exception of limitation for criminal proceedings in respect of the accused Edgardo García. Mentees legal actions were filed in a timely manner (pages 71 and 72), however the attorney general, by its opinion obrante to fs. 84, as established withdrew the appeal lodged by the lower hierarchy, maintaining the charge on the other hand such procedural remedy (pages 87vta.) And expressing their grievances through memorial added to fs. 99/104vta., Requesting the revocation of the resolution of the 1 st instance. In turn the defense, improved fundamentals by presenting a fs. 91/8vta., requesting validation of the resolution of the 1 st instance. He complains that Edgardo Garcia, in his capacity as deputy director of the firm "Cap Ferrat SA, together with the other members of the board of the company, authorized to constitute themselves as solidary guarantors of a debt held firms" sugarcane plantation SA "and" Lornell SA "to" Rio Grande SA Ingenio "without any justified cause whatsoever and despite all of them, in principle, formed a single economic group. However, in the end, and due to the lack of cancellation of that obligation, "Cap Ferrat" ended up becoming the sole debtor and paying off that debt, thereby hurting shareholders that at that time did not participate in the directory, which, according to the complaint, this make up 50% stake. Such dubious operation allowed on the other hand, the withdrawal of the sum of $ 868,050 by their partners Shareholder Class "A". As stated in the social accounting records, this payment was completed on 5/4/1994 and materialized through the provision of three certificated drawn against the Banco Piano, which were charged to the next day.The defendant was convened here in this process in terms of art. 294 of the CPP. on 5/5/2000, lacking of any criminal record García (pages 8). Now, time to resolve the issue study brought to the court shares the position held by the attorney general, in that this action with respect to Edgardo Garcia is extinguished, since taking into account the full scale envisaged for this criminal act (art. 173 inc. 7 of CPEN.) and the absence of any action switch of the prescription within six years disvalioso perpetrated the fact that he is charged, in the absence of love in the sequel kind whatsoever except the call to provide preliminary statement, constitute sufficient evidence to validate the stay issued by the 1 st instance (art. 336 inc. 1 of the CPP.). The lawsuit is against such a position arguing that in reality, the withdrawal of money was made by the partners after the date considered by the court, however, this hypothesis appears corroborated by two of the three certificated referred by the financial institution turned, amen the fact that the commission is located in the board's decision-that is, in the abusive act and not at the time of check cashing cash representing property damage caused by such operación.Por therefore not applicable to this case the doctrine established failure in the whole "Marsiglio, Irene I." solved the 08/28/1995, but with different procedural rules propose that the agreement: Confirm the order of fs. 68/9vta., As stated This criminal action is extinguished by prescription, and therefore dismissed the defendant Edgardo García, in order to the crime for which he was investigated. Without costs (Articles 45, 59 inc. 3, 62 inc. 2, 173 inc. 7 of CPEN. And 336 inc. 1 and 531 of the CPP.) Dr Barbarosch said: I disagree with my distinguished colleague room, Dr . Carlos Gerome, in regard to the procedural steps that are significant enough to be considered sequel to trial, given that, according to a recent ruling by the C. Nat Criminal Appeals, Room 3 meetings (in re "Saks, Walter R."-rta. 21/5/2001-), considered as the first act switch, the prosecutor requested instruction, which, at present, occurred on 21/09/1999 (see fs. 17 / 9 of the principal record); reason, taking into account the date of the offense -6/4/1994- and scale of the crime alleged criminal - six years, it did not take enough time to consider this action extinguished by prescription (art. 62, inc. 2 of CPEN).. With the decision of the Board of Appeals 3 rd, back to maintain the criteria that you felt when Coroner was following the guidelines of the failure of this room 4 ª "Mater Dei"-rta. 12/6/87-, though in different order procesal.Por addition and without prejudice to the foregoing, with respect to the time consumed maneuver here investigated I am of opinion that the crime of cheating administration is consumed with the conclusion of the legal act detrimental, as long as the totality of the economic consequences occur in the act, however, if as in the species as a result of that is they occur on a regular economic divestment, the consummation is perfected at the exact moment the last payment, which culminates with the economic arrangement that reduces the assets of the victim (in the same way Carlos Creus, Criminal Law, Special Part, t . I, p. 505). For these reasons, vote for the agreement to revoke the decision of the 1 st instance, over the objection of prescription introduced by Mr. Attorney General and the extraction of evidence applying to the complaint, to investigate the conduct executed by the trial judge in the administrative and to that end, these testimonies will be forwarded to the Special Secretariat for this court. Dr. Gonzalez Palazzo said Dr. Adhere to vote Gerome.Por the credit offered by the agreement above the court finds: 1) Confirm the order of fs. 68/9vta., Was declared extinct in this criminal action by prescription, and, accordingly, dismissed the accused Edgardo García, in order to the crime for which he was investigated. Without costs (Articles 45, 59 inc. 3, 62 inc. 2, 173 inc. 7 of CPEN. And 336 inc. 1 and 531 of CPPN.Disponer ordered the removal of evidence and submit the same to the Special Secretariat of this court. Notifíquese Mr. Attorney General, and date should be refunded the previous instance comply with the notification thereof, serving as supplied by careful note of shipping. Dr. Mariano Gonzalez Palazzo signed this under the provisions of ss. 5, inc. w [L NAC AD S/N/1952 C38! 5 iw], and 37, inc. c [L NAC AD S/N/1952 C38! 37 ic] by RJNP .- Alfredo Barbarosch (dissenting) .- Carlos Gerome .- Mariano Gonzalez Palazzo.
2. Repetition of acts: the crime is considered to include all acts performed during the period of administration. This was said by the Court, but I think that somehow have to distinguish between the cases because when the commission of crime is very large, should be accepted as a standard of distinction.
complicated concept. Collusion is the act whereby fraudulently put a condition of fact, agreeing on the resolution conspiracy, without fulfilling the typical action, or take advantage of another to execute it.
a. Complicity is participation, so typically unlawful and culpable action, committed to the general principles established for all forms of participation in the crime (§ 50). Complicity is a willful act done intentional. Culpable complicity is conceivable, but not punishable as such (conf KOHLRAUCH - LANGEG, Strafgesetzbuch, 1950, p. 112; ME MAYER, Der allgemeine Teil, p. 398, see supra, § 49, 6 -). B.
The accomplice must put a condition on the outcome, otherwise there would be no causal contribution on their part to the fact, the attendance requirement for an objective of all stakeholders (§ 50, III, A., a.). C.
By requiring that the accomplice does not meet the typical action is what distinguishes the author, that typical concrete adaptation action directly to a figure of the special part (§ 49, 2 -). By excluding those who use one to run, is it different from the intellectual authors and instigators (§ § 49, 2 - A., 2. and 51, II, 1 -). The concept of complicity
determined by exclusion of other forms of participation (broadly defined) in the crime
DISTINCTION OF ARGENTINE PENAL CODE: ACCOMPLICES NEEDED AND NOT NEEDED. The distinction between members who have a condition and those who have given assistance or cooperation is not necessary, is made by a large number of codes, some author considered necessary accomplice, other, more technical rigor, only make the comparison quod PENAM. This is the approach taken by the Argentine code, with correct technique, which states that they render unauxilio or cooperation without which the fact could not have committed, have the penalty for the crime (art. 45 Those who cooperate in any way to the execution of the act and providing subsequent aid to fulfilling earlier promises to it, shall be punished with the punishment for the crime, diminished by one third to one half (art. 46
In our view, which decides the action and not the person of the accomplice. The result is that if the specific event would not have been committed without the action of the participant, it is complicit in the primary (essentially compliant, RC NUNEZ, D. P. Argentina, T. II, p. 295; MA Oderigo, Penal Code, No. 158-a; EMILIO DÍAZ C., Penal Code, p. 112 and the cases cited below.) Naturally, if the assistance or cooperation could only lend that person, because of their status, employment or other circumstances, the classification of the accomplice as necessary will be even clearer. THE PENALTY OF
primary complications. The punishment for accomplices of the first degree is establecidapara crime. For the offense, not the author or authors, the provision in Article 47 of the Penal Code, for which the penalty is limited to that set for the fact covered by guilt, refers to the accomplices, without distinction between primary and secondary. Moreover, although Law said nothing, the limitation will occur in the same way (see above incitement where we discussed the issue referred to the accomplices). Furthermore, the communication game communication or not the circumstances, relationships and personal qualities that have resulted in increased, decreased or exclude the penalty, the penalty can be different for each participant (§ 50, II, A. 4.) .
If lord attempted to stay in the penalty corresponding to the primary accomplice is fixed for the attempt (articles 47, paragraph 2 º and 44 CP). If the attempt was voluntarily withdrawn, all participants are exempt from punishment (art. 43 See supra, § 48, 2 -, and § 50, II, B., bb).
III. Secondary complications (not required)
1 - ACTIONS secondary complications. As already mentioned, the side complicit in the crime involved a non-essential to its commission. That is, those providing assistance or cooperation without which it could have done the same commission. And the difficulty was soon offered the practical distinction between primary and accomplices accomplices side when it comes to cooperation, and what are the criteria proposed to achieve (supra, II, 2 -).
The law distinguishes two categories of secondary complications: a) those who cooperate with prior or contemporaneously with the execution of the act, b) providing further assistance to fulfill earlier promises.
the penalty of secondary complications. The penalty for accomplices of the second degree for the offense is reduced by one third to half. If the penalty imposed is life imprisonment, imprisonment applies fifteen to twenty years and if life imprisonment, imprisonment apply ten to fifteen years (art. 46, CP). It's the same criminal level as described in Article 44 for the attempt, ruling the same criterion for determining the maximum and minimum scaled (see § 46, IV, 3 -).
If the act is not consummated, the death of a partner is determined in accordance with the provisions of this Article and the tentative title (art. 47, second paragraph). It is here to participate in an event that has only been tempted, having verified the accomplice everything necessary for their implementation (Explanatory Memorandum 1917, p. 89). The penalty is subject to a double reduction of identical size: one-third to half, due to the complicity and, again, a third to half, by applying the rules of the attempt. In an attempt
voluntarily withdrawn, all participants are exempt from punishment (supra, § 48, 2 - and § 50, II, B., bb).
Court: Supreme Court's Office Date: 03/12/2002 Party: Fake, James and others Posted on: LAW 2003-D, 60, with a note of Norberto E. Spolansky, LLC 2003 (March), 183 - Criminal Area 2003 (May), 2, Norbert E. shout Spolansky; Quote Court Judgments: 325:3255 Quote Online: AR/JUR/2836/2002 Under the so-called "megacauses" who were convicted had served as president of the Banco Social de Córdoba by mismanagement repeatedly. The defense concluded appeal arguing that, mindful of the management unit, it was a unique event and continued. Denied such relief by the Superior Court of Cordoba extraordinary appeal was raised as a direct presentation motivated dismissal. The Supreme Court annulled the contested statement. 1 - The different actions of infidelity or abuse made under the same mandate are a unique and comprehensive fact of mismanagement-art. 173, inc. 7, Cod. Criminal, "for management is a legal concept indivisible subject to its divisibility material time or space, which features a unique design and one final accountability (the opinion of the Attorney General that the Court endorses.) 2 - Repeal the sentence which condemned to a subject by various acts of mismanagement, repeated, despite the existence of a single and continuous management, in the case, as chairman of Banco Social de Córdoba, "for various criminal intervals, even when they have happened in a seemingly correct actions do not involve repetition or multiply the offense, so the lower court should analyze such maneuvers consistent with the possibility that the sentence is unknown assurance "ne bis in idem" (the opinion of the Attorney General that the Court endorses.) In the same cars: TSCórdoba, Criminal Division, 2000/04/05, LLC, 2001-65; TSCórdoba, Criminal Division, 1999/03/25, LLC, 2000-544; CCrimCórdoba, 9 th Nom., 1998/05/21 , LLC, 1999-1201. The division of criminal proceedings - "megacauses" for fraudulent Social at the Bank of Cordoba, and procedural approach to the volume and complexity of the investigation, does not validate the multi-participant trial of all actions necessary "in the case investigated, president of that institution, accused of mismanagement in repeatedly by two facts despite their management unit-which is a violation of the principle "ne bis in idem" (the opinion of the Attorney General that the Court endorses.) In the same cars: TSCórdoba, Criminal Division, 2000/04/05, LLC, 2001-65; TSCórdoba, Criminal Division, 1999/03/25, LLC, 2000-544; CCrimCórdoba, 9 th Nom., 1998/05/21, LLC, 1999-1201.
