El nacimiento de la responsabilidad civil derivada de delito

Abstract

The issue of the origin of the misnamed ex delicto civil liability is a matter that has not been duly resolved by our positive law. However, the 1995 Criminal Code radically changed the previous approaches and incorporated two rules that seem to contradict each other. This paper develops how the issue must be resolved on the basis of abstract legal reasoning, from the norm structure proposed by KELSEN and considering the ius-philosophical distinction between legal norm and normative text. Our basic conclusion is that there is no "ex delicto" civil liability, but that the premise of the ex delicto rule requires the presence, first, of a criminal offense and, second, of a civil tort, which are located on very different legal grounds.