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1.- IMMEDIATE SOURCE: It is the source of criminal law with its own binding force:
a) The law.
It is a rule or legal norm that is dictated by the competent authority of each
particular site. Its purpose is to order or prohibit some action in accordance
with justice. In addition, laws limit free will, that is, to people within a society;
They are norms that govern social behavior.
The law is the main source of law because, to be issued, it needs a legislative
body. In the event that the laws are not complied with, the public force has the
duty and obligation to sanction the corresponding person or institution.
Mediate sources derive their binding force from the law and, therefore, must conform
to it, the following can be identified as mediate sources of criminal law:
a) Jurisprudence:
These are the decisions that the Supreme Court of Justice pronounces in
sentences, interpreting criminal laws to resolve conflict situations.
b) The Doctrine:
It is the thinking of jurists about the content and scope of criminal law.
c) Custom:
These are the rules of conduct that are formed within the social group by the
constant repetition of actions and omissions.
To interpret the law is to search for its content, to investigate its meaning, to try to
find the expansive power of its provisions, or as one author says: to investigate the
proper meaning of a legal provision to apply it to a specific case of real life.
The interpretation is not going to look outside the law, but within it.
It is the logical operation that tries to unravel the meaning of the law, that is, the
legislative will and not precisely that of the legislator, because the law is the result of
the discussion and approval of a collegiate body, whose sanction is constituted by
the sum of the votes that form the majority.
● Doctrinal Interpretation.
It is the one carried out by writers in their work and it is totally free and
creative, it is usually linked to both the current law and its reform.
● Court Interpretation.
It is the one carried out by the judges in charge of the application of the
law.
When this interpretation is authoritative because it has become current,
it is called jurisprudence, which is not and cannot be binding on judges,
since the decision of the courts lacks force and effectiveness outside of
the case resolved.
As for the means used, there are several elements that constitute in varying
degrees and measures to unravel the meaning of the law.
But the order that is logically imposed is to analyze the law:
● Grammatical Interpretation.
It consists of looking for the meaning of the words used by legislators.
The meaning of the words must be taken into account when the law is
enacted, because as someone has said, the law is for the people and it
is logical that the legislators have written it to be interpreted by the
people, except in the case that the law refers to technical matters.
● Teleological Interpretation.
Which consists in unraveling the will of the law, attending to the
purpose, for which it was dictated through the examination of the legal
text as a whole, of the reasons that motivated the law, of the opinion
and of the law at that time, etc.
The interpreter when performing this logical operation can arrive at the
following results.
● Declarative:
When the words used in the text of the law correspond to the spirit of
the law.
● Restrictive:
When the scope of the words of the law is reduced, because it is
understood that the will of the law does not allow all the meaning that
may fit in it to be attributed in its letter.
● Extensive.
When the interpreter believes that the scope of the legal words should
be extended so that the letter corresponds to the spirit and will of the
legal text.
● Progressive:
The interpreter must seek the law and the new needs of the time,
because since it is not possible to reform it periodically, it is necessary
to update its meaning through this interpretation.
The analogical interpretation supposes to transport to a case not foreseen in the law,
a similar one, that is to say that by means of the analogy it would be a question of
filling the gaps or gaps in the law.
6.- THE LEGISLATIVE DECREES:
Regulated in article 82, they are the product of a delegation of the Cortés in the
executive power by virtue of a basic law when the object is the formation of an
articulated text, or it is done by ordinary law to consolidate several texts into a single
one. .
It is done expressly and for specific matters for a determined time, delimiting the
scope of the delegation and, finally, there is no sub-delegation.
In criminal matters, this possibility does not fit to the extent that fundamental rights or
public liberties are affected due to the existence of a principle of reserve of organic
law.
What does not start so that it can be legislated with ordinary law or legislative decree
in criminal matters when it does not affect fundamental rights or public liberties.
They are those provisional legislative provisions that emanate from the executive
power for reasons of extraordinary and urgent need. They cannot affect the basic
institutions of the State, nor the rights and freedoms of citizens regulated in Title I of
the EC, nor the regime of the CCAA, nor the electoral regime.
In criminal matters you cannot legislate by decree. There is, against this sustained, a
part of the doctrine that believes that in unfortunate situations such as an earthquake
it is possible to legislate in criminal matters by decree law.
8.- International treaties:
They are a direct source from the 1974 reform of the CC approved by decree of May
31, 1974. Article 1.5 CC states: "the legal norms contained in international treaties
are not directly applicable in Spain as long as they have not become part of the
internal legal system through their full publication in the BOE".
Thus, there is an example of international treaties in our internal legal system that
are applied; matters of extradition, international terrorism, etc. Article 96 EC says:
"international treaties validly concluded abroad and published in the interior, will
become part of the internal legal system."
FUENTES DEL DERECHO PENAL
1.- Ser exclusiva; ya que solo ella crea delitos y establece sanciones.
2.- Ser obligatoria; ya que todos tienen que acatarla, tanto el individuo como los
organismos oficiales y estatales.
3.- Ser ineludible; ya que las leyes solo son derogadas por otras leyes
4.- Ser igualitario; ya que la constitución proclama la igualdad de todos ante la ley.
5.- Ser constitucional; siendo la ley constitucional, se excluye para el caso concreto.
b) La Doctrina:
Es el pensamiento de los juristas acerca del contenido y alcance del derecho
penal.
c) Costumbre:
Son las normas de conducta que se forman dentro del grupo social por la
constante repetición de acciones y omisiones.
a) Por el intérprete:
Lo que no empiece para que se pueda legislar con ley ordinaria o decreto legislativo
en materia penal cuando no afecte ni a derechos fundamentales ni a libertades
públicas.
Son fuente directa desde la reforma de 1.974 del CC aprobada por decreto, de 31
de mayo de 1.974. En el artículo 1.5 CC se dice: “las normas jurídicas contenidas en
los tratados internacionales no son de aplicación directa en España en tanto no
hayan pasado a formar parte del ordenamiento interno mediante su publicación
integra en el BOE”.