Citas bibligráficas
Bandera, M., (2016). La ponderación de bienes jurídicos y el principio de proporcionalidad. [Tesis, Universidad Andina del Cusco]. https://hdl.handle.net/20.500.12557/633
Bandera, M., La ponderación de bienes jurídicos y el principio de proporcionalidad. [Tesis]. : Universidad Andina del Cusco; 2016. https://hdl.handle.net/20.500.12557/633
@misc{renati/18246,
title = "La ponderación de bienes jurídicos y el principio de proporcionalidad.",
author = "Bandera Serrano, María Teresa",
publisher = "Universidad Andina del Cusco",
year = "2016"
}
Platón said, the worst form of injustice is simulated justice. In this way, the problem of the research work is related to the proportionality of the penalties imposed for the crimes of injuries by family violence and the crime of violence against the authority to prevent the exercise of its functions by the Judge, due to the Deficient motivation of the level of affectation or endangerment of the juridical asset that protects said criminal types. Likewise, the imposition by the Judges of custodial sentences on the crimes of family violence injuries, whether serious or minor, suspended in their execution covered by Article 57 of the Criminal Code, however, because in many of the The judgments analyzed in the sample reveal that the Judge does not take into consideration the nature and the modality of the punishable act and also makes a double valuation of the attenuating ones with the objective of fitting the punitive margin in Article 57 to impose suspended penalties in its execution, Leaving aside the assessment of the affectation or endangerment of the legal asset protected by the criminal type of injuries caused by family violence. Thus, all sentences issued for the types of serious and minor injuries caused by family violence against women and the penal type of violence against the authority to prevent the exercise of their functions for the period from 2015 to 2016 are collected and The analysis of the same has verified that in relation to the specific illicit type of serious and minor injuries due to family violence, the Judge does not value the facts or the modality of the punishable act nor does it make an appropriate valuation of the legal good to take it as a reference At the time of imposing the penalty and in many cases, it only mentions what the legal good is without proper argumentation and/or motivation, so that procedural figures are used as the anticipated conclusion and is not taken into account The seriousness of the facts regarding the effect on the protected legal right, stating that it is based on the protection of legal rights, is that it has been based on the definition of illicit in our Penal Code, in addition the Judge incurs a double assessment of The mitigating factors that the Public Ministry would have already done, due to the judge's eagerness to impose suspended sentences on his execution. This lack of motivation or legal argument in relation to the assessment of the legal goods infringed by the commission of a crime, results in the existence of sentences with disproportionate sentences, with respect to the protected legal good and the seriousness of thefacts that have injured them Or endangered, a situation that has been demonstrated within the present research work. Therefore, it was concluded that the sentences imposed by the Judge in the crimes of family violence injuries, whether serious or minor, are disproportionate because they do not exceed the first level of the proportionality test, which is suitability, because The Judge is not imposing an appropriate punitive sanction since it does not fulfill the purpose of the criminal type that is to protect the legal good, because the judge did not value the affectation or endangerment of the legal good.
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