La intervención de los sujetos privados en el delito de peculado: ¿coautores?

Abstract

Embezzlement of official property by a public official is one of the most controversial crimes in the field of Ecuadorian Criminal Law. It is typified in the Ecuadorian legal system in Article 278 of the Organic Criminal Code, its relevance is fundamentally in two aspects: the special characteristics of the active subject and the legal asset that it protects. To enter to study the subject of this article, it is first necessary to define other concepts that are of utmost importance to understand this essay, such as perpetrator, joint perpetrator, accomplices and the communicability of the circumstances. This will allow us to comprehend that, although a certain quality is required from the perpetrator to be considered an author, the person without the qualification required by the type, who sometimes intervenes with essential acts for its consummation, cannot be left unpunished or with a lesser penalty. However, the complexity of the subject makes it necessary to observe two highly relevant figures that are: the intraneus and extraneus. Both will contribute to the deepening of the analysis, which together with the support of the Ecuadorian jurisprudence will justify the relevance of the exposed subject. Therefore, the purpose of this essay is to analyze and present the different jurisprudential criteria used by the different Ecuadorian courts and tribunals to convict the private party as co-perpetrator of the crime of embezzlement despite not having the qualification required by the crime.