Responsabilidad penal y omisión impropia en delitos contra la administración pública: un análisis de la posición de garante del funcionario

Commission by omission has been regulated in Ecuador under the doctrine of the guarantor position; however, the way in which the law is drafted makes it difficult to attribute responsibility to public servers who commit crimes against the public administration due to omission. Study of the Penal Codes of 1938 and 1971 is carried out to understand how the sources of the guarantor position were regulated and who was part of this role. This is evident that the drafting error leads to problems in the typicality of criminal offenses related to public administration, since they do not meet the objective or subjective elements of the criminal type. Therefore, those acts of corruption carried out by omission will be an atypical conduct under the Ecuadorian legal system. In this context, reference is used to foreign legal systems that have given a better treatment to commission by omission.