tipicidad; antijuricidad; culpabilidad; punibilidad
These criminal theory terms often appear to elude translation since they are not familiar concepts in Anglo-American law. Briefly, the Spanish system for determining criminal liability (also adopted in many Latin American jurisdictions) follows the tripartite German model and is accomplished in three successive steps. First the tipicidad (Tatbestandsmäßigkeit) of the act is established, i.e., a determination is made as to whether when committing his crime the alleged offender has fulfilled each element of the statutory definition of that specific offense (tipo penal). Among others, these include both tipo objetivo and tipo subjetivo elements similar to the actus reus and mens rea requirements of Anglo-American criminal law. Then the antijuricidad (Rechtswidrigkeit) or wrongfulness of the act is assessed to determine whether the alleged offender’s act was antijurídico or wrongful (sometimes also translated as “unlawful”) and whether there are justification defenses (causas de justificación) that would render the act lawful. In a third step culpabilidad (Schuld), i.e., culpability or blameworthiness is examined to ascertain the alleged offender’s individual accountability for the offense and whether there are excuse defenses (causas de exculpación) which would exempt him from criminal liability. As a final consideration punibilidad (Strafbarkeit), that is, elements of individual punishability are then addressed.
Along with other concepts of Spanish criminal theory, the above are explained in English in:
Bachmaier Winter, Lorena y Antonio del Moral García. Criminal Law in Spain. Alphen ann den Rijn: Kluwer Law International, 2010.
Gómez Jara, Carlos y Luis E. Chiesa. “Spanish Criminal Law” in Kevin Jon Heller and Markus D. Dubber, eds. The Handbook of Comparative Criminal Law. Palo Alto: Stanford University Press, 2009, pp. 488-530.
Hermida, Julián. “Convergence of Civil Law and Common Law in the Criminal Theory Realm.” University of Miami International & Comparative Law Review, Vol. 13 (2005-2006) pp. 163-232.