On the function of the penal scales, the consequences of a normative contradiction and liability under the actio illicita in causa

Abstract

In this paper, I first analyse the section where Juan Pablo Alonso rules out that the answer to the normative conflict can be found in the penal scales foreseen for each crime and I argue the opposite. Then, I look at the solution offered by Alonso and, finally, a third hypothesis of a solution is put forward. It is argued that there is a way out other than that of atypicality that is valid even considering that the penal scales do not count as a solution to this problem. For this to be feasible, however, it is necessary to add an additional factor that has not been included in Alonso's analysis: the knowledge on the part of the subject at the time of issuing the cheque that he will probably be declared bankrupt before being summoned to pay. If the subject is aware of that circumstance and that, therefore, he will probably not be able to pay the cheque without infringing another duty, he may be criminally punished regardless of the conduct he performs. In this case, the subject is responsible for the conflicting situation in which he finds himself and therefore cannot invoke the conflict as an exonerating circumstance. In order to account for this possibility, it is necessary to bring up the structure of the actio illicita in causa with its corresponding justification.