Negligência Implica Erro-Ignorância e Tentativa Implica Erro-Suposição

Abstract

Contrary to what is commonly held, negligence (namely, conscious negligence) and willfulness (namely, recklessness) are not distinguished on the basis of the volitional element but on the basis of the cognitive element, since negligence implies ignorance-mistake, being the volitional element common to both figures. On the other hand, if, in negligence, the representation of the typical fact is something that exists less than what objectively exists, in the attempt, on the contrary, it is something that exists more. Hence, attempt implies assumption-mistake. In conclusion, whenever there is a mistake and criminal liability occurs, the “normal” cases of liability, those associated with the commission of a willful and consummate crime, are excluded