The Performance of a Typical Fact or a Justified Positive Fact does not Imply Breach of the Rule of Determination

Abstract

The Dominant Doctrine considers that the realization of a typical fact protected by a causal justification should be considered forbidden despite the permission of the justification, this conception tries to avoid considering that the typical fact represents something bad wanting to prohibit the right due to the injury that produces. This is not the correct dogmatic decision, it must be understood that the typical justified fact is not prohibited and allowed at the same time by criminal law, since the realization of the typical fact or positive fact - according to the theory of negative elements of the type - affirms the own devaluation contained in the mandatory rule or rule of determination, but it is not yet possible to consider the rule of determination to be violated. In order to establish this systematic solution, it is necessary to differentiate between law and criminal law, and to affirm that the nature of legal criminal norms are always imperative, although they presuppose the devaluation of the prohibition contained in the norm that is implicit in the Law, but they do not imply the existence of another rule of valuation nature.