Desistimiento activo y desistimiento pasivo. Consideraciones sobre el rendimiento de la distinción entre tentativas acabadas e inacabadas

Abstract

The distinction between incomplete and complete attempts currently finds clear support in Spanish positive law, being suggested by the legal definition for attempt itself. Thus, it is not surprising that such categories easily exist without much rebuttal in Spanish legal doctrine and in decisions made by Spanish courts. Nonetheless, it is doubtful that genuine necessary consequences can be associated to this naturalistic classification in legal dogmatics (naturally, notwithstanding, the terms being used in a descriptive sense, alluding to the reality that is normally associated with them). After reviewing the essentials behind the source of this distinction, this article focuses on the most significant aspect of the intended dogmatic effects¿the correlation with a specific type of desistance (passive or active), aligning with the stances that refute any decisive value in the field for said classification. With regard to desistance, the article also analyses projected distinction in relation to structures that were not considered when designing it, such as commission by omission, conduct crimes or multiple accomplices to the fact.