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The guilty conscience represents an increase in the sentence. Generic guilt and special guilt. On the basis of this, one distinguishes: the generic guilt that occurs when the transgression has concerned behavioral norms at the social level, or that are rooted in common and social life. Laziness, recklessness and incompetence originate such guilt.
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The specific guilt occurs instead when the transgressed behavioral norm is written or has its own legal reference.
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The excess of guilt happens when, even though there are the minimum conditions for a justifying situation, the agent for guilt (that is, unknowingly) goes beyond the boundaries.
To give an example: the one who was assaulted kills while being satisfactory only to strike to protect himself.
The offense made in circumstances of excess is punished as culpable if the same event is considered by the law as attributable as guilt.
It should be emphasized that the excess can be generated either by a mistake on the reproduction of the real world (Individual who is hit with a whip, exchanges it for a weapon like a rifle and responds with a weapon); that by a mistake in the execution (Individual who does not measure his own shots but kills only wanting to hit).
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The fundamental thing is that the intention of the person is aimed at the implementation of the purpose considered motivated.
If, on the other hand, the boundaries of the wasteful are consciously exceeded, we will find ourselves in the different circumstance of "malicious excess".
The circumstances of arrest in flagrancy and detention for the crime are, due to the procedural law in criminal law, two temporary procedures that condition individual liberty - the so-called preventive measures - whose legislative subject is found in Title VI of Book V of the Code of criminal procedure.
Such circumstances are implemented by people who can use the code and only in certain situations of need and care.
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The arrest and detention referred to are considered preventive measures since almost always, although not necessarily, they are followed by an individual precautionary measure such as, at demonstration level, the precautionary custody in prison.
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The same situations of arrest and stop mentioned above, then find confirmation at the constitutional level in Article. 13 of the Constitution, which after having established the principle of the intangibility of individual liberty (paragraph 1) and the inadmissibility of models restricting individual freedom if not for action motivated by the judge and only in the situations and modalities provided for by the legislation (paragraph 2), in paragraph 3 it states that "In special circumstances of need and care, provided categorically by the legislation, the public security authority may apply temporary provisions, which must be sent within 2 days to the judge and, if the latter does not approves them within the following 2 days, they are to be considered canceled and have no effect ».
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The arrest in flagrante of wrongdoing is generally carried out by officers and judicial police (articles 380 and 381 c.p.). Article. 383 c. p. p., in the first paragraph, establishes that private individuals have the possibility - it should be noted that they are not obliged - to carry out the arrest in flagrante only in the situations of forced arrest established by article 380 c. p. p. and provided it concerns crimes that can be prosecuted ex officio.
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The person who has made the arrest must without delay to give custody of the arrested person and the objects that constitute the proof of the crime to police officers who spread the document attesting the successful delivery by releasing a copy (Article 383 paragraph 2 ).
The PM can not order such an arrest except in cases of unlawful conduct during the hearing pursuant to art. 476 paragraph 1 c. p. p. (for example, at the hearing in which the father of the raped girl takes out a gun killing the alleged accused rapist) and when he acts as a private citizen, in the circumstances and modalities provided for by the aforementioned art. 383 c. p. p ..