Action for crimes of omission Depdne family care or not a procedural requirement

Criminal prosecution for a crime of omission to the Family Assistance depends on whether or not a procedural requirement

By: Christian Orlando Flores Quineche

This mission tene make a short analysis of the classification of appeal issued by the Permanent Criminal Court, which dealt with the procedural requirements in the crimes of omission to the Family Assistance is the Cassation

marked with number 02-2010 - Lambayeque, dated April 6, 2010, which despite having been declared inadmissible, established in the eighth recital that "the first paragraph of section one hundred forty-nine Penal Code penalizes the conduct of who "fails to fulfill its obligation to provide support establishing a court (...)", which, therefore, not be concluded that in that type of crime or other legal reference questions punitive intervention that condition to their previous satisfaction, so that in crimes of omission family care is clearly not the default requires more than the food obligtación-established in a court-so that the respective concerned can initiate criminal proceedings, that if well in practice court requesting, among others, the judicial decision approving the settlement of accrued alimony, this is not a procedural requirement for criminal action. "

However, I must point out that this commentary is not intended to cover regarding whether or not fulfilled the requirements for eligibility and grant procedurability Cassation, but on the contrary, if the crimes of omission there is the Family Assistance or not a procedural requirement, for which, I will begin by noting that the special means of defense is called a preliminary question that comes when you do not attend or omitted a procedural requirement explicitly provided for in the Act, that has nothing to do with the unfair or the author's conviction, regardless of political expediency only criminal, in order to precautionary action the validity of the criminal trial that a Mass Mixan Florencio is a procedural requirement that must be met fully, with all regular before moving to prosecutions. The procedural requirements, to operate as a preliminary question must be in the law explicitly, and that the rule so provides may be extra-criminal or criminal.

On the other hand, Article 566-A of the Code of Civil Procedure incorporated by Article 1 of Law No. 28439, issued on 28.12.2004, reads: "If the obligor, after having been notified to carry out final decision does not comply with the payment of alimony, the judge, at the request of a party prior request to the defendant under penalty express, send a certified copy of the payment of pensions accrued and resolutions respective Provincial Criminal Prosecutor turn, to proceed in accordance with their powers. This act replaces the procedure for bringing criminal charges. " Furthermore, Article 568 ° of bounded states: "Upon completion of the process, on the basis of the proposal made by the parties, the Secretary of Court shall make the payment of pensions accrued and interest computed from the day following the notification demand, in response to what happened in the early assignment logbook. In the settlement must be granted by the transfer to within three days with his answer or not, the court shall decide. This decision is appealable without suspensive effect. The subsequently accrued shall be paid in advance. "

As noted in the previous point, we can conclude that the offense under Article 149 of the Criminal Code, Failure to Support Family-requires previously the accused, has been sued in the process of food family where previously was issued a court settlement firm injunction court under penalty of being criminally charged with failing to comply with the claim food set, as can be seen from the analysis of Article 566-A in accordance with Article 568 of the Code of Civil Procedure and not have interpreted wrongly in the appeal matter of comment, hoping that after it corrected in subsequent interpretations.