Concepto categorial teleológico y sistema dogmático del moderno Derecho penal económico y empresarial de los poderosos
Con anterioridad a la configuración del Derecho penal económico como un sistema más o menos completo de tipos penales orientados a la lesión o al peligro de bienes jurídicos en el curso de la actividad económica, la doctrina jurídico-penal no había cuestionado seriamente la legitimidad de los escasos y dispersos tipos de esta naturaleza existentes en las legislaciones penales. Sin embargo, cuando se consolida aquel sistema, ciertos sectores de la doctrina, como sobre todo la llamada Escuela de Frankfurt, lo descalifican como contrario a los principios y garantías del Estado de Derecho y le cuelgan la etiqueta de “moderno”. No obstante, la etiqueta de Derecho penal moderno se extiende asimismo a otros sectores de la intervención penal que nada tienen que ver con la economía, como las drogas, el terrorismo o la ingeniería genética, porque también en éstos la intervención penal se apartaría de las garantías del Estado de Derecho […].
Categorical teleological concept and dogmatic system of modern economic and business criminal law of the powerful
Prior to the existence of an economic criminal law – here meant as a more or less complete system of offences regarding the injury (or the threat thereof) to legal goods in the course of economic activities –,criminal law scholars had not seriously questioned the legitimacy of this sort of offences, which in small numbers were scattered throughout criminal law. However, when that system has consolidated, certain sectors of the doctrine, and especially the so-called Frankfurt School, have disqualified it for being contrary to the principles and guarantees of the rule of law, and have linked the mentioned system to the “modern” label. However, this label has also been extended to other sectors of the criminal law intervention that have nothing to do with the economy, such as drugs, terrorism or genetic engineering, this only because these criminal interventions would also depart from the guarantees of the rule of law. In this paper, we firstly criticize the extension afforded to the concept of modern criminal law when applying this label to diverse and heterogeneous phenomena that have nothing to do with each other. The latter is done not only from a dogmatic juridical standpoint, but also from the criminological (empirical) and criminal-politic perspective. Consequently, the present paper supports the thesis that the concept of modern criminal law should be confined exclusively to the economic and corporate-related criminal law perpetrated by the powerful or social high classes. On the basis of this constraint, we strongly reject the views that have tried to establish certain criminal-politic connections between the economic and corporate criminal law and the criminal law called of the security, which often overlaps with the “criminal law for the enemy”. According to the view here adopted, the“modern” economic criminal law would be an absolutely legitimate product of the Social State based on the rule of Law, being entirely coherent with the substantive guarantees of this form of State, while other forms of non-garantist criminal interventions, which are intended to be justified by the ideology of public safety, would be an illegitimate product of the Liberal Police State that tries to unseat the Social State based on the rule of Law. By ways of a reply to certain absolutely unfounded criticisms that have been directed against the discourse of modernization of criminal law, the paper builds a Dogmatic of the economic and corporate criminal law of the powerful that, first, systematizes and classifies it on the basis of the guiding principles of the disvalue of action and of the result, which give raise to the “basic” economic offences, and then derives specific consequences in subsequent dogmatic levels of crime theory, that is, in the configuration of aggravated or privileged types of crimes, aggravating and mitigating circumstances, and in the fields of justifications and guilty circumstances. Thus, on the basis of the “idea” of law and its concretion by analogy according to the nature of the things, we will derive the “concept” of modern economic and business criminallaw of the powerful, which, as a “classificatory” and “category” concept – but also as a “teleological” one –, excludes completely, for substantive reasons, the negligible economic criminality of the powerless.