Embezzlement and Unlawful Distraction.: A Proposal of an Unifying Dualistic Reconstruction of Art. 470 Nº 1 of the Chilean Penal Code

Abstract

The paper seeks to ground a twofold interpretation of art. 470 Nº 1 of the Chilean Penal Code, as a provision which formulates a sanction norm that reinforces two different conduct norms, the transgression of which is respectively constitutive of the offenses of embezzlement and unlawful distraction. The former can be understood as an offense of appropriation of entrusted property while the latter as an offense of diversion of an entrusted object resulting in patrimonial detriment. To achieve this, a clarification of the common element of the definitions of both forms of criminal behavior will be offered, after which their respective specific elements will be examined. The fundamental innovation of the proposed reconstruction lies in the explanation of the legislative decision thus articulated, in terms of the understanding of the relation which holds between ownership and patrimony as the legal positions respectively protected by the two conduct norms under consideration. Through an argument in favor of the so called “functional conception of patrimony”, the paper will attempt to demonstrate the need of recognizing both a material and formal congruence of the protection of ownership and patrimony, whose postulation enables a rationalization of the criminalization decision expressed in art. 470 Nº 1.