El principio de legalidad y el error de tipo en el Derecho penal

Abstract

This paper studies the relationship between the principle of legality and the application of methods of integration of law. The objective is to be able to fill regulatory or axiological gaps that arise in specific cases, in particular the application of type error in criminal law as grounds for exclusion of fraud. For this purpose, two studies are presented, the first on the meaning and scope of the principle of legality in criminal law and the second on the type error as a cause of exclusion of fraud. To this end, bibliography has been reviewed on the evolution of the principle of legality from the French revolution and illuminism to criminal guarantee, as well as a bibliographic analysis on crime theory to understand type error and whether it is possible or not its application without violating the principle of legality. This work was carried out through interviews with five criminal lawyers, two recognized university professors and lawyers, a fiscal agent from the city of Cuenca, an official of the Provisional Detention Center of Riobamba and a lawyer in free exercise in order to consult on the application or not of the type error without affecting the principle of legality. The results indicated that the principle of legality in criminal matters has a special scope, which is to limit the scope of the punishable, avoid excess and arbitrariness of state power against citizens. It will always have a more favorable sense towards people, to their rights and guarantees. In the case of type error, as grounds for exclusion of fraud,even if it is not legislated, its application is possible without violating the principle of legality, reducing punitive power and expanding freedoms.