WHAT ARE THE POSITIVE AND NEGATIVE ELEMENTS OF THE CRIME? - ARTE - 2025

The positive and negative elements of the crime constitute a set of six positive and negative requirements that must exist for the criminal activity to be classified as a crime or not.

Although for the crime to exist, the presence of a party that executes it and another that is affected is essential, in addition to an object on which the criminal action falls, it is essential that the crime meets certain positive requirements so that it can be considered as such.

Otherwise, when negative elements of the crime are found in the situation, the act goes from being against the law to being favored by it.

In the first place, it is necessary to begin by defining what the crime is, being able to understand by this the fact of committing a physical or moral offense, or a crime that violates the legal legal systems and the human rights of other citizens.

It can commonly be defined as an infraction of the law of the State, and that results from an external act of man, either positive or negative, considered morally imputable and politically damaging.

The positive and negative elements of the crime are part of the so-called "Theory of crime", which consists of a categorized and sequenced arrangement of all the requirements that must come together so that the act can be considered criminal or not before the law.

These elements constitute a tool of great help for every criminal, who when determining whether a crime has been committed or not, should only take into consideration the presence of the positive or negative elements of the crime.

These elements indicate the course of action that must be followed when judging the person who committed the act, being framed within the field of criminal law.

What are the elements of the crime?

The positive and negative elements of the crime constitute the components and characteristics that make up the concept and notion of crime under the law.

Hence, the positive elements are the requirements that must be met for a crime to exist.

On the other hand, the negative elements come to be the contradiction of the positive aspects of the crime, being able to emphasize that the mere presence of a negative element brings about the non-existence of a positive one, making the crime cannot be classified as such.

Positive elements of crime

Action or conduct

It refers to the performance of the act of crime, that is, for a crime to take place there must be a person who carries out the criminal activity, act, or action.

This behavior is manifested through various actions that man performs, coupled with the presence of a criminal moral will, and can also be carried out in two ways.

The first is to carry out an action, while the other may simply be the choice not to act and stop doing some activity.

For this positive element to be considered, it is necessary that four elements converge:

• The externalization of the individual's will to carry out a criminal activity
• The material realization of the criminal activity, that is, that the materialization of the individual's will can be visibly observed
• The existence of a visible result caused by the action that was carried out
• The existence of a causal link between the activity carried out and the results that have occurred.

Unlawfulness

For the crime to be considered as such, the action or act must go against any legal precept established in the rule.

In other words, it is essential that the activity carried out goes against the law.

Culpability

For the individual to be classified as guilty, there must be a close and clear relationship between the author of the conduct and the action itself.

In the same way that the author must have will and knowledge of fact.

Typicity

This positive element comes from the common phrase "There is no crime without law", hence it is crucial to consider an activity as criminal that it is indicated in the law.

That is, the fact must be recognized and defined as a violation of the law, since otherwise it cannot be judged by it.

Said element refers to the famous "legal loopholes" when a certain fact cannot be judged because it is not in the norm.

Imputability

This element is defined as the ability to understand criminal law, that is, the perpetrator must be aware of the act committed, hence it implies that the person has mental health and mental aptitude to act in the criminal field, namely against the law.

Punishment

Once the above elements are defined in the act carried out, it is necessary for the crime to be punished.

Hence, when the conduct is punishable, the criminal act is confirmed and the perpetrator is worthy of some penalty or threat from the state of imposing sanctions.

Negative elements of the crime

Absence of action or conduct

This element is based on the principle that if there is no conduct that motivates the crime, or if the criminal action or act was not carried out, it cannot be called a crime.

If the subject does not have the will to commit a crime, however he performed the action in the presence, for example, of nervous disorders that are not consciously perceived, or due to sleep, sleepwalking or hypnosis, the act cannot be considered a crime.

Absence of unlawfulness

If the action taken is not against the law, it cannot be considered a crime.

Blamelessness

If it is not possible to prove that the subject is guilty of carrying out the material action and having the physical and moral will, it cannot be legally sanctioned.

Lack of typicality

If the activity in question is not defined as a crime in the legal framework, it cannot be judged as such.

Unimputability

It refers to the fact that if the individual was not with the full physical and mental capacity to acquire consciousness and understand that the action went against what is established in the law and the norm, he cannot be considered guilty and the act should not be judged as a crime either.

Acquittal excuses

If the perpetrator manages to present an excuse in between, which can be recognized under the law, the punishment of the crime must be eliminated.

The acquittals are personal circumstances that prevent the application of the sanction.

References

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