The Vanguard of the Military Penal Code from 1969 in the Definition of Inappropriate Omissive Crimes

Abstract

This paper analyzes the main theoretical approaches to the concept of omission in military criminal law and, consequently, of the structuring of criminal responsibility of the subject who occupies the position of guarantor in the so-called improper omissive crimes, commissioners for omission or qualified omissions. Starting from the “guarantee theory” (Garantenlehre), adopted innovatively by the CPM in 1969 and which came to fill the omission regarding this type class in the former causal General Part of the common Penal Code of 1940 - only supplied with his Reform in 1984 -, the theory of functions (Funktionenlehre) is presented in sequence, which operates an interesting distinction between the “guarantor with the function of surveillance or control” and the “guarantor with the function of protection”, closing the path dogmatic with the subsidies of the philosophy of language, which points out the similarity between action and omission as socially relevant “meaning formations”, thus overcoming a merely mechanistic conception of acting.