Dolo
Dolo requires both knowledge and will. The agent knows the elements of the offence and carries them out. Under Spanish finalist doctrine, it sits in the subjective side of the type rather than culpability.
There are three degrees:
| Class | Cognitive element | Volitional element |
|---|---|---|
| Direct, first degree | Foresees the result | The result is the goal |
| Direct, second degree | Knows the result will necessarily follow | Accepted as an inevitable side effect |
| Eventual | Knows the result is a serious possibility | Contested |
Border with conscious negligence
Dolo eventual and conscious negligence share the same cognitive element. In both, the agent foresees the result as possible. Two main approaches distinguish them:
- Volitional theories ask whether the agent accepted or consented to the result.
- Cognitive theories focus purely on the gravity of the foreseen risk.
Mistake
Article 14 CP regulates mistake across three paragraphs:
- 14.1, mistake about a fact constituting the offence (error de tipo). Invincible mistake excludes liability. Vincible mistake is punished as negligent if a negligent modality exists.
- 14.2, mistake about a fact that qualifies the offence or constitutes an aggravating circumstance. The aggravating element does not apply.
- 14.3, mistake about the unlawfulness of the act (error de prohibición). Invincible mistake excludes responsibility. Vincible mistake lowers the penalty by one or two degrees.
Note Article 14.1 and Article 14.3 differ fundamentally in structure.
Special Cases
- An error about the identity of the victim leaves liability intact when both victims share equal legal protection.
- Aberratio ictus occurs when a blow goes astray. Most authors treat it as an attempt combined with negligence.
- A specific subjective element of the unjust, such as intent to gain, is occasionally required by the definition of the offence.
Common pitfall: A vincible mistake of type does not reduce intentional penalties. It shifts liability entirely to negligence. Lowering the penalty by degrees applies only to a mistake of prohibition under Article 14.