Three paradigmatic cases of the reflex effect of civil codification in the drafting of the chilean Penal Code

Abstract

The nineteenth-century codifying plan designed in Chile by Manuel Montt and Andrés Bello in 1852 contemplated the existence of a «general code» that had to be coherent with the rest of the texts and thus obtain the ideal of legal unity and lack of internal contradictions of the iusrationalism. Hence, legal historians and criminal experts ignored the intimate relationship between the Civil Code of 1855 and the Penal Code of 1874. This relationship is observed both in the effects of civil regulation in the system used in the Penal Code and in the use of technical words from civil law that were transferred to criminal law, as well as in the call of the civil coder to regulate certain infractions as crimes. This analysis, focused on the analysis of abortion and fraudulent behavior, combines historiographic analyzes with current criminal dogmatics, which allows us to contribute to the solution of discussions that remain in force despite 150 years having passed since the promulgation of the Chilean Penal Code, in a historical context in which many of the figures in which the reflection effect of the civil codification on the criminal one is more evident and is discussed, because we are in a context of social and political change different from the second half of the XIX century.