MALA IN SE AND MALA PROHIBITA

Violations of the Revised Penal Code are referred to as malum in se, which literally means, that
the act is inherently evil or bad or per se wrongful.  On the other hand, violations of special
laws are generally referred to as malum prohibitum.

Note, however, that not all violations of special laws are mala prohibita.  While intentional
felonies are always mala in se, it does not follow that prohibited acts done in violation of special
laws are always mala prohibita.  Even if the crime is punished under a special law, if the act
punished is one which is inherently wrong, the same is malum in se, and, therefore, good faith
and the lack of criminal intent is a valid defense; unless it is the product of criminal negligence or
culpa.

Likewise when the special laws requires that the punished act be committed knowingly and
willfully, criminal intent is required to be proved before criminal liability may arise.

When the act penalized is not inherently wrong, it is wrong only because a law punishes the same.

Distinction between crimes punished under the Revised Penal Code and crimes punished
under special laws
1.             As to moral trait of the offender

In crimes punished under the Revised Penal Code, the moral trait of the offender is considered.
This is why liability would only arise when there is dolo or culpa in the commission of the
punishable act.

In crimes punished under special laws, the moral trait of the offender is not considered; it is
enough that the prohibited act was voluntarily done.

2.             As to use of good faith as defense

In crimes punished under the Revised Penal Code, good faith or lack of criminal intent is a valid
defense; unless the crime is the result of culpa

In crimes punished under special laws, good faith is not a defense

3.             As to degree of accomplishment of the crime

In crimes punished under the Revised Penal Code, the degree of accomplishment of the crime is
taken into account in punishing the offender; thus, there are attempted, frustrated, and
consummated stages in the commission of the crime.

In crimes punished under special laws, the act gives rise to a crime only when it is consummated;
there are no attempted or frustrated stages, unless the special law expressly penalize the mere
attempt or frustration of the crime.
4.             As to mitigating and aggravating circumstances

In crimes punished under the Revised Penal Code, mitigating and aggravating circumstances are
taken into account in imposing the penalty since the moral trait of the offender is considered.

In crimes punished under special laws, mitigating and aggravating circumstances are not taken
into account in imposing the penalty.

5.             As to degree of participation

In crimes punished under the Revised Penal Code, when there is more than one offender, the
degree of participation of each in the commission of the crime is taken into account in imposing
the penalty; thus, offenders are classified as principal, accomplice and accessory.

In crimes punished under special laws, the degree of participation of the offenders is not
considered.  All who perpetrated the prohibited act are penalized to the same extent.  There is no
principal or accomplice or accessory to consider.

Test to determine if violation of special law is malum prohibitum or malum in se

Analyze the violation:  Is it wrong because there is a law prohibiting it or punishing it as such?  If
you remove the law, will the act still be wrong?
If the wording of the law punishing the crime uses the word “willfully”, then malice must be
proven.  Where malice is a factor, good faith is a defense.
In violation of special law, the act constituting the crime is a prohibited act.  Therefore culpa is
not a basis of liability, unless the special law punishes an omission.
When given a problem, take note if the crime is a violation of the Revised Penal Code or a special
law.