Abstract

VARGAS PINTO, Tatiana  and  HENRIQUEZ HERRERA, Ian. Defense based on necessity in Chilean criminal law. A dogmatic perspective on a recent reform. Estud. Socio-Juríd [online]. 2013, vol.15, n.2, pp.11-39. ISSN 0124-0579.

ABSTRACT This paper discusses a new cause of exemption from criminal responsibility incorporated in the Chilean Penal Code based on the state of necessity. The new provision was added as a result of a discussion regarding the defense of conducts not covered by legitimate defense in the case of women who live in an environment of domestic violence. Nevertheless, the new text incorporates a general defense that does not refer to women in particular and which -based on the necessity conflict- contemplates requirements that seem to go beyond a justification cause based on the lesser evil, without clarifying the type of defense it represents. The central objective of this paper is to define this exemption of responsibility and the problems it causes are the central objectives of this paper. Firstly, we point out that the provision seems to accept both types of defenses due to necessity: a justification cause and an excuse or exculpation cause. This requires performing a special analysis on the grounds for each type of defense in order to differentiate them and identify their respective scopes and limits.

Keywords : defense; necessity; justification; excuse; victim; evil; protected interest.

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