Derecho penal

COLUSIÓN ILEGAL

Art. 384: El funcionario servidor público que, en los contratos, suministros licitaciones, concurso de precios, subasta o cualquier otra operación semejante en la que se intervenga por razones de su cargo o comisión especial defraudando al estado o entidad u organismo del estado, según ley, concertándose con los interesados en los convenios, ajustes, liquidaciones, o suministros,será reprimido con pena privativa de libertad no menor de tres años ni mayor de quince años.

I. ANTECEDENTES

Tiene como fuente directa al art. 344 del código penal de 1924. Las fuentes extranjeras de influencia para la redacción de dicho dispositivo fueron los art. 400-4001 del código penal español y 265 del código penal argentino.

II. LA FIGURA PENAL Y EL DERECHO COMPARADO

Este delitosque en otras legislaciones penales recibe los nombres de.
* Negociaciones incompatibles
* Situación indebida de contratos
* Fraudes contra el estado.
Tiene un propósito especifico: el conminar de los funcionarios, servidores públicos, y equiparados o que observen el rol especial que han asumido en los negocios, contrataciones y además operaciones y demás operaciones en los queparticipan a nombre del estado.
Este tipo penal no observa una adecuada técnica legislativa en su redacción pus contiene innecesarias repeticiones y se halla condicionado a la concertación, ofreciendo también análisis.
La intervención penal en esta área de conductas es de naturaleza subsidiaria y complementaria a los procesos administrativos respectivos que ventilan las responsabilidades de los sujetospúblicos por conductas infuncionales.

III. BIEN JURÍDICO PROTEGIDO

El objeto de la tutela penal es cautelar la regularidad, el prestigio, y los intereses de la administración pública, expresados en la idoneidad moral y celo profesional en el cumplimiento de sus obligaciones por parte de los agentes públicos. Castigando a los funcionarios y servidores públicos que transgrediendo sus roles hanlesionado los intereses del estado se reafirma así la vigencia del ordenamiento jurídico.
La figura de colusión ilegal es una modalidad de corrupción del sujeto público que nos muestra crudamente la venalidad y deslealtad, incompatibles con el cargo o comisión.

VI. SUJETO ACTIVO Y SUJETO PASIVO

Solo los funcionarios y servidores públicos que actúen en razón de su cargo o por comisión especialpueden ser sujetos activos. No puede ser autor por lo tanto cualquier funcionario o servidor que carezca de las facultades especificas de decisión que el tipo exige; sus aportes serán en todo caso de complicidad o asumirán irrelevancia. La norma no crea un tercer sujeto en el comisionista. El art. 386 realiza un extensión normativa de la autoría o de participación. Según la naturaleza del aporte,a los peritos, arbitrios y contadores particulares.

VII. COMPORTAMIENTO TÍPICO

Los componentes materiales del tipo reúnen diversos componentes normativos de naturaleza administrativa extra penal. En torno al comportamiento del funcionario o servidor público. Pero el núcleo rector se halla resumido en el acto de defraudar los intereses estatales y paraestatales concertándose con losinteresados.

A) Núcleo rector público

El núcleo del comportamiento ilícito, es defraudar al estado o entidades y organismos sostenidos por este mediante la concertación de los interesados en los convenios, ajustes, suministros o liquidaciones.
Este defraudar los intereses estatales o paraestatales a través de la concertación con quienes el estado negocia implica toda una flagrante violación de losdeberes inherentes al cargo a los encargos de la comisión especial confiada a los funcionarios y servidores públicos. Estos se valen de las atribuciones poseídas para sustituir ilícitamente los intereses y pretensiones estatales o paraestatales, a lo que por ley deben estar llamados a representar o cautelar, por sus pretensiones e intereses particulares.
Los sujetos que actúan a nombre del…

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