Abstract

CARNEVALI RODRIGUEZ, Raúl  and  SALAZAR ZENTENO, Cristóbal. The Alternativity Principle as a Closing Clause within the Concurrency of Criminal Laws. Rev. Fac. Der. [online]. 2020, n.49, e109.  Epub Nov 01, 2020. ISSN 0797-8316.  https://doi.org/10.22187/rfd2020n49a9.

Traditionally, the criminal science has questioned the validity of the principle of alternativity, understanding that it is within other rules who informs the apparent concurrency of criminal laws, mainly, the principles of specialty and consumption, in other words, lack of autonomy. However, despite the questions that the alternative presents, its application is justified on the grounds of certain assumptions. Although it has been explained on the basis of “legislative mistake”-which is still true-, its basis can also be found in reasons of proportionality, among others. The paper analyzes the development of the principle in comparative law and its reception in Chilean doctrine. Although it is concluded that its application is rather limited, it does offer satisfactory answers, estimating that a precept such as Article 8 of the Spanish Criminal Code has effective performance capacity. In addition to the foregoing, it examines the difference that may arise between the concurrency for laws and the apparent concurrency of laws, which would not only be a semantic issue, allowing greater operability to the principle examined, understanding it as a closing clause within the system.

Keywords : Alternativity Principle; Concurrency of Law; Concurrency of Criminal Offence; Criminal Conviction; Legislative Mistake.

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