Fenómeno de anticipación de la barrera punitiva del derecho penal y política criminal en las últimas reformas del Código Penalespecial mención a los delitos contra la seguridad vial

Résumé

INTRODUCTION, OBJECTIVES: This tesis describes the problem area caused by crimes of abstract danger. The permanent tension between the primary rules and basic the principles of criminal law -reservation, culpability, inocence,harmnfulness and proportionality-: basicly generated by a "risk society".The legislator has turned his activity into an authoring criminal law, leaving away an acting criminal law. The criminal law has expanded, not only acting as a última ratio, but its becomes into a sort of social confrontation, or an instrument for socia change. That drives into a re-conceptualisation of the legal protected good. Furthermore, the unraveling of if there is a empirical justification on the basis of criminological data for endure the punishment for this legisferante conduct has been sought. The brief analysis, begining in a dogmatic position, of the last changes in the criminal law is also included, and more precisely the crimes against road safety. The analyse of the criminal policy, which lies in a constant and permanent hardening of the punitive barrier -Zero Tolerance- and a subsequent confrontation against "dangerous" citizens is also included. KEYWORDS: Crimes of abstract danger, basic principles of criminal law, risk society, enemy criminal law,legal protected good, crime theories,criminal policies, zero tolerance. METHODOLOGY: Descriptive study of legal bibliography, specialized magazines and jurisprudence. Statitistical analysis. Attendance and participation in criminal law. CONCLUSION: A) Taking a Dogmatic approach: negative points 1) typify dangerous behaviour or that conducts thath may cause danger of a danger-obstacle crime- they violate the classic principles (reservation, harmfulity, inocence, culpability, proporcionality and intimacy); 2) General prevention preeminence; 3) Conversion into a paternalistic state of permanent control; 4) advance of the punitive barrier,due to electoral interest. Arguments for: 1) criminal laws can not and should not be static; 2)An intense research for advance and grow up with the society and its constant evolution; 3) the reformulation of the concept "legal good" in order to adequate it into a modern crime rigths; B) From a political criminal point of view, 1) An aphatic legislative process for a lack of serious criminological studies, or some against the existing ones, affected by the influence of the mass media. 2) The use of crimes of abstract danger as the predilect gun for the regulation of social behaviour, 3) Questioning of the last changes in the penal code, among them, the crimes against road safety; 4)Implementation of a criminal law turning away the dangerous subject from the society-increment of inmates condemned for road safety crimes-. 5) Sputtering of the guarantee-based culture and that oriented to the reintegration; 6)Crime is not seen as a consecuence ofsocial imbalances anymore, at the individual, but the expression of the activity of an individual criminal person,dysfunctional to all social; 7) Breakdown of penal welfarismo,raiding into "Zero tolerance" policies ; 8) The use of such expressions as "urban terrorisim" causing a stigma in those subjects that are not included in all social, 9) The lack in the elaboration of inclusion policies- criminal policies, criminology, and criminal law-;10) Empirical accreditation, in those crimes related to road safety crimes, that even with a low rate of casualties, a more stringent law were set, and as a consecuence, the number of inmates increase, and also in the expeditious trials, and more condemned in TBC; 11) As a consecuence, the tension between the primary rules and principles decides in the first; 12) A proposal of a penal law of a excluding trust has been set; 13) To project an intermediate penal law between the nuclear and the accesory, between administrative and penal law, 14) Propose a personal concept of a legally protected good, and 15) The administrativization of abstract danger crimes.