What we call crime by defamation and we define injury as a sanction which is considered when a person understands that certain insights u opinion harm or can produce qualitative damage to the moral or honor of one or more persons; they must be cited before presenting a thesis or opinion of what it represents defamation and the injury in our bar code and law of expression and dissemination of thought that the to date Today is showing the sanctions that they present within the jurisdiction Dominican.
LA DEFAMATION AND THE INJURY
El article 367 del Code Criminal law defines it as, I quote: «Defamation is allegation o imputation a done, which attacks the honor or consideration of the person or of body to which it is imputed. Any insulting expression, any invective or insult is considered an insult. term of contempt, which does not contain the imputation a done accurate". End of the date.
The defamer refers to a done determined, whether true or false that attacks the honor or consideration of a person person. The injury exists because of the simple done to be used with respect to a person an offensive or derogatory expression in itself, without imputing a done precise, as defined by the article 373, I quote: «For the above provisions to be applied, the circumstance of publicity of the defamation or of the insult. The insult that does not have the double character of publicity and imputation a vice determined, will be punished with penalties of simple police». End of date.
El crime by defamation and injury is a sanction which is considered when a person understands that some insights u opinion damaged his honor. This legislation establishes a series of exceptions that exempt from penalty but in no way /// is excluded crime.
La claim principal is elimination of the criminal laws of defamation, not just any law de defamationThe objective is to achieve its decriminalization, that is, that it is not considered a crime and therefore do not have penalties of prison.
CONSTITUTIVE ELEMENT COMMON OF THE DEFAMATION AND THE INJURY
Advertising: The defamation and insults against individuals do not constitute crimes per se when they are not carried out publicly. absence of the element of publicity, the insult constitutes a contravention de simple police according article 373. The defamation same when it is not carried out publicly changes in a certain sense of nature and is sanctioned as the simple injury. In accordance with the provisions of the article 471 numeral 16 of the Code Criminal law, I quote: «It will be punished with fine a weight: Those who without haber been provoked to insult someone person except in the cases provided for in the treaty of the defamation and insults. End of date.
Public places are those frequented by everyone or where anyone person can have access at all times. Public places by destination are those accessible to all persons who wish to enter them for a specific purpose. It is distinguished from the previous ones in that publicity is not inherent to its nature: at a certain time it may stop being open to the public to determine the difference, at the time of the crime was open to the public. In general private places can occasionally become public places, it is only in question in fact which corresponds to the Cutting de Cassation verify whether the public nature of the defamation results from the circumstance in fact verified by the judges of the fondo.
SPECIAL CONSTITUTIVE ELEMENTS OF THE DEFAMATION
- La allegation o imputation a done accurate
La allegation It is an assertion made on the basis of a rumor public or a simple assumptionWhile challenge It is a personal statement based on a knowledge firm staff.
These must be filed in a done precise, whose veracity or falsehood can be verified. If guilt to another that was convicted for some crime, can be both true and false false. A statement has been made done precise that can be verified, then a crime has been committed defamation and these can be punishable, even if it was presented under a crafts disguised or by by of insinuation.
- Un done that involves an attack on honor or consideration
Attacks honor when it is contrary to law. your property, to loyalty, to the honesty, it matters little that it is punishable by the law penal. The allegations that a citizen can use his influence to have him exonerated from the the service military or acting as bad faith in business. It attacks consideration when it injures a person in its ethical aspect, that is, when it is susceptible to compromise their social situation or Experience. This is one imputation de acts contrary to the consideration of the person.
It is not necessary that the person is expressly designated by its name, it is sufficient that it can be identified in a way clear and precise to the person referred to. When the defamation It is directed against a person moral or a community, a distinction is imposed. In /// That the imputation is done in such a way that it attacks each member of the community every time associated you can sue the defamer.
It is always demanded and even lack advertising, when the defamation becomes a simple contravention, no matter the mobile. This intention It is presumed criminal and it is the person warned who is responsible test that intention does not exist, through the exposure de acts justified of their good faith and the judges of the fondo appreciate, under the control of the Cutting de Cassation, the value of the acts justified allegations.
Si lack one of the four elements already mentioned, disappears infringement. By virtue of this, the action public which may not be exercised against the Author but done may constitute a crime civil or quasi delict. The action civil en reparación of the hurt can be exercised before civil courts.
SPECIAL CONSTITUTIVE ELEMENTS OF INJURY
- Offensive expression, term of contempt or invective
For there to be crime of insult to individuals is necessary, according to the article 373 del Code Criminal law, that the insulting expression, the term of contempt or invective, entails the double character of publicity and imputation a vice determined but the law does not demand as in the /// of the defamation, the imputation of a precise fact. It matters little whether the incriminated expression attacks or not the honor or consideration of the person aggrieved. The insulting nature is derived from its violence or of his rudeness.
- Designation of the person insulted
As the defamation, the injury must haber been directed against a person or body constituted. As the defamation, the insult may consist of words or acts, but they can also consist of writings, because despite the deficiency of the formula legal, it's not possible duda any about the thought of the legislator to understand in the definition of the insult the written accusations directed at a person or a body constituted. Articles 367 and 369 refer to living persons, I quote: (367) "Defamation is allegation o imputation a done, which attacks the honor or consideration of the person or of body to which it is imputed. Any insulting expression, any invective or insult is considered an insult. term of contempt, which does not contain the imputation a done accurate" and (369) "The defamation or the insult made to the Deputies, or Representatives to the Congress dome, to the Secretaries of State, to the Supreme Court Judges Cutting or the courts of First instance, or the Chiefs and Sovereigns of friendly nations, will be punished with prison from one to six months and fine of fifty pesos. End of date.
En effectArticles 367 and 369 refer to living persons since only they can be harmed by the defamation or by injury. This is how the Supreme Court expresses itself Cutting de Justice, In sentences that, in the functions of Cutting de Cassation, pronounced on January 28, 1927 (Judicial Bulletin No. 198, page 13). What is protected is not the reputation or the memory of the deceased, but the heirs when they prove that they have suffered a perjury.
As in the /// of the defamation, the Author from the injury must haber acted with intention guilty. Can't haber injury without intention of injury. It is presumed that intention. The dolo The specific nature of the injury is formed by two circumstances:
To the knowledge that the expressions used or actions performed commonly serve to dishonor or to offend.
B) That it has been but done or executed in an offensive manner.
- Offenses of libel
Any injury that does not present the dual character of publicity and imputation a vice determined, constitutes a contravention of injury as explained by the article 373 part in fine the judges of peace are competent for judge y condemn with penalties of simple police to those guilty of the contravention of injury. They cease to be so when in the acts the circumstance of publicity of the insult occurs, /// that the courts of 1st are competent instance.
COMPETITION OF THE DEFAMATION AND INJURY
La jurisprudence Judicial Bulletin 749, page 823, April 1973, does not say that the crime de defamation and it is an insult competition of the Court de First Instance and when this Tribunal be declared lack of jurisdiction la court empowered by the resource de appeal should avocate el fondo and to say it, I quote: «CONSIDERING, that the examination of the failure challenged puts of manifest acts put to cargo of the forewarned were defamation and insults, punishable by penalties of prison correctional, according to the article 371 del Code Criminal law, for which reason its knowledge y failure corresponded to the Tribunal de First instance, and not to court de peace, as the third had misunderstood camera penal, attorney of the ///; that under these conditions, the court acts, since the camera cited upon learning of the opposition of the warned, he did not judge the /// a fondo, but rather simply declined to court de peace, due to the cancellation of the failure de First instance, avocate el fondo and decide it; that, by not doing so, he ignored the article 215 del bar code de proceedings criminal for which the sentences contested must be married, with exception of the contravention of the injury that this is competition of the court de peace This is how it is expressed bar code penal at their article 471 numeral 16». End of date.
Article 371 mentioned in the jurisprudence, I quote: "The defamation against individuals will be punished with prison from six days to three months and fine from five to twenty-five pesos. End of date.
Article 215 del Code de Procedure Criminal mentioned in the jurisprudence, I quote: "If the sentences by violation u omission not repaired in ways prescribed by the law a penalty de nullity, the Cutting will rule on the fondo». End of date.
An sentences of the Supreme Cutting de Justice (Judicial Bulletin 399, page 931, of the year and we will announce 1943) presents as a rule that the defamation same, when it is not carried out publicly, changes in a certain sense of nature and is sanctioned as the simple injury, that is, like the contravention of injury.
EL REGIME DE RESPONSIBILITY CIVIL AND INJURY
El regime de responsibility civil established in the Act 6132 of expression and dissemination of thought is based on regulating the crafts in which the thought must be expressed in a written and its later publication, that is, in writing or in any other way crafts already established in its article 23, I quote: "Persons who have directly incited the Author or the authors of a act qualified crime o crime, /// that the incitement was followed by effect o commission of the crime o crime, will be punished as accomplices of the same… End of date. Meanwhile he regime de responsibility of the article 367 del Code Criminal law It is based on the fact that the defamation en violation This article is when something is verbally alleged in prejudice de moral of a person physical or moral.
THE PENALTIES IN DEFAMATION AND INJURY
The penalties established by the Act 6132 in your article 33, I quote: "The defamation committed in damage of individuals by one of the means stated in articles 23 and 29 shall be punished with penalty from fifteen days to six months prison and with fine from RD$25.00 to RD$200.00, or with one of these two penalties only. defamation committed by the same means against a group of persons, not designated by the article 31 of this document law, but who, by their origin belong to a certain race or religion, will be punished with penalty a month to a year and we will announce de prison and with fine from RD$25.00 to RD$200.00, when it is object provoke feelings of hatred in the población». End of date.
And in some /// special like the article 26 of said law, I quote: «The offense to the President of the Republic by any of the means stated in the article 23 will be punished with the penalty from three months to one year and we will announce de prison and with fine from RD$100.00 to RD$1,000.00, or with one of the two penalties only. The penalties provided for in this same article are applicable to the offense to the person that exercises part or all the prerogatives of the President of the Republic». End of date.
At the /// of the insult articles 34 and 35 of the Act 6132 express the following, I quote: (34.) «The injury committed by the same media in damage of the bodies or persons designated by articles 30 and 31 of this law will be punished with penalty from six days to three months prison and with fine from RD$6.00 to RD$60.00 or with only one of these two penalties" and (35) » The injury committed in the manner established in the article 34 in damage of individuals, when not preceded by provocation, will be punished with five days to two months of prison and with fine from RD$ 6.00 to RD$ 50.00, or with only one of these penalties. The maximum of the penalty will be 6 months and that of the fine will be RD$ 100.00, if the insult was committed with the purpose of provoking feelings of hatred in the población, damage a group of people who, due to their origin, belong to a particular race or religion. End of date.
La prescription of the action penal at the /// of the defamation and insult according to the Code de Procedure Criminal law, the Code Criminal law and Act 6132 of expression and dissemination of thought. The prescription for crime de defamation typified by the article 367 del Code Criminal law for being a crime correctional will prescribe in the Plazo three years as seen here to prescription of crimes in correctional matters.
La law 6132 of December 19, 1962 indicates that the actions based on said law must be initiated within two months following the dissemination of the expressions in question. effect, the article 61 of the Act 6132 prescribes, I quote: "The action public and the action civil resulting from the crimes and offenses provided for herein law They will expire after two months have elapsed, starting from the to date in which they were committed or of the to date of the last act de persecution if this has taken place. End of date.
El Code Procedural Criminal law o Act 76-02 was enacted on July 19, year and we will announce 2002: which means that it is later in the year tiempo to Act 6132 and its provisions. Saying Code Procedural Criminal law (Act 76-02) provides in its article 45, I quote: «Prescription. The action penal prescribes: 1. To expiration a Plazo equal to the maximum of the penalty, in the violations punishable by penalty deprived of freedom, without in any way /// this Plazo may exceed ten years or be less to three. 2. To expiration of the Plazo a year and we will announce In the case of offences punishable by non-custodial sentences, freedom or penalties of arrest». End of date.
From the confronted reading and from the interpretation combined of the article 45 del Code Procedural Criminal law and the article 33 of the Act 6132 set out above, it follows that the action to pursue the defamation at the /// of the species prescribes to term of the maximum of the penalty applicable, which in this /// is six months.
La part at the end of article 449 numeral 3 of the Code Procedural Criminal law (o Act 76-02) expressly prescribes, I quote: «Final Provisions. Which gives all other repealed provision de Act Special that is contrary to this bar code». End of the date.
El article 57 del Code Procedural Criminal law, I quote: «Exclusivity and Universality. It is from the competition exclusive and universal criminal jurisdictions. Knowledge y Foul of All Punishable Actions and Omissions provided for in the Code Criminal law and in the Legislation Criminal law Special, and the execution of its judgments and resolutions, as established by this Code. The rules of proceedings established in this Code apply to the research, knowledge y failure any product done punishable, without to import its nature nor the person accused, including members of the Armed forces and Police National, even though the acts punishable offences attributed to them have been committed in the exercise of its functions and without damage of the strictly disciplinary powers of the bodies to which they belong. The infractions and procedures in the cases of children and adolescents are governed by their Act Special. End of date
As you can see, the Code Procedural Criminal law repealed all aspects of proceedings of all special laws that were or are contrary to it, with exception of the Legislation Minors Special.
Bliss repeal It is expressed: It is only necessary to examine the aforementioned articles 449 and 57: It repealed any provision procedural any product Act Special that is contrary to it, with exception of the Legislation Minors Special.
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