Civil liability 'ex delicto': causal interference of the victim

July 05 , 2019 // Legal Reforms and Debate

Published in El Economista

The criminal action also makes it possible to combine the civil action for compensation. Any person responsible for a crime is also civilly if the act of willful or reckless has caused damage that must be repaired in its entirety.
But this legal obligation of full compensation for the damage suffered has exceptions in those cases in which the victim's behavior and lack of diligence causally interfere in the production of the damage suffered, the consequence being the reduction or decrease in the value of the damage. Thus, Article 114 of the Criminal Code establishes that "if the victim has contributed to the production of the damage or injury suffered, the Judges or Courts may moderate the amount of compensation or compensation", typifying the jurisprudential doctrine - fundamentally civil - known as concurrency of guilt or compensation for damage or reparative consequences. In short, this means the reduction or reduction of the amount of compensation and the distribution of the obligation to repair the damage when both the conduct of the perpetrator of the crime and of the victim affect the injurious result.
While this doctrine, at first, was applied exclusively in the area of ​​civil liability not admitting the compensation of criminal effects where the responsibility is due to the criminal conduct of the perpetrator of the crime, in the last decades of the twentieth century began a jurisprudence that used the concurrence of blame not only for the moderation of the quantum of compensation but even to reduce on occasion the penal sanction in cases of crimes of injury or homicide due to imprudence ("the imprudence, initially considered as serious, can be degraded to slight when a reckless performance of the victim occurs, since that concurrence determines less responsibility, less avoidability and a lesser perspective of danger, consequently a lower degree of influence on the causation of the result. "Sentence of the 2nd room of the Supreme Court of 24-4-2001).
The most recent jurisprudence has revised this criterion and maintains the traditional criterion of applying it only in the strictly civil setting of compensation and irrelevant the imprudence of the victim for the determination of criminal responsibility of the perpetrator of the crime.
The jurisprudence has also been raised whether this moderation of the reparation of damage operates only in the area of ​​civil liability ex delict due to imprudence or if it can also operate in cases of civil liability ex delict for fraud. The pronouncements are not uniform although it seems to be imposed the thesis that maintains that the wording of Article 114 of the CP does not allow to exclude its application to intentional crimes, and in the case of an aggression caused by the victim, the compensation for damages can be reduced to receive having contributed their own behavior to the production of the damage (STS of March 3, 2005). STS 522/2017 also recognizes that art. 114 CP refers both to fraudulent or negligent cases in which the victim's contribution adjusts the indemnity amount in consideration of his contribution in the development of the punishable action.
However, the position of the Supreme Court that suppresses any possibility of moderating civil liability in intentional crimes against wealth or enrichment is clear. In these cases article 114 of the C.P. can not be applied, "for much causal negligence that can be attributed to the victim", nor can the author of the infraction consolidate his unjust enrichment, totally or partially. "When what comes is the restitution or in default of it the compensation as a substitute, there is no moderation." (STS 23-01-19).
In the proper and strictly civil, the figure of the concurrence of blame is typified in Article 1.103 of the Civil Code that provides for the power of the Courts to moderate depending on the cases the liability arising from negligence, and it is convenient to remember that the civil action it does not lose its nature despite being exercised in the criminal process. And if we focus on the facts of circulation, scope of application par excellence of the civil action for compensation, also Article 1 of the Law on Civil Liability and Insurance in the Movement of Motor Vehicles provides that when the victim contributes to the production of the damage will be reduced all compensation in response to concurrent fault up to a maximum of seventy-five percent. Adding that it is understood that such contribution exists if the victim fails to comply with security regulations and causes the aggravation of the damage.
The return to the criminal sphere and criminalization of a large part of traffic accidents-consequence of the reform in the matter of negligence in the driving of motor vehicles or moped of the code operated by organic law 2/2019 of March 1-is going to suppose a greater application in this penal scope of the doctrine of the concurrence of guilts, when intervening in good part of the accidents of circulation a multiplicity of factors causantes of the damage, between which in many occasions it is the own act of the victim.
Despite the legal consolidation of this doctrine, the practical application of the same and, in particular, the specification of the degree of participation of the victim or the percentage of their responsibility in the production of the damage and the consequent determination of the compensation and decrease of the integral reparation that in principle must obtain that one, it continues being a faculty of free appreciation on the part of Courts and Courts. They enjoy a wide discretion to set the amount of the specific civil liability, which should adequately motivate such decrease and being the central element to take into account the greater or lesser incidence of the victim's behavior in the result, so it should be analyzed and to motivate separately both concurrent conducts to fix the transcendence of each in the production of the result.
This allows us to conclude that there are no fixed elements that determine a reduction or abatement percentage due to the victim's causal interference and that excessively the reductive percentage without a motivating backing that makes the reduction fair and balanced is left at the stroke of a judicial impression.

Responsabilidad civil 'ex delicto': interferencia causal de la víctima

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