The crime of receiving: Offended legal good and problems of mens rea in the light of article 456 bis A of the Chilean Penal Code

Abstract

The main objective of this article is to address two specific aspects of the crime of receiving: the basis for its punishment and the problems of mens rea that arise under the Chilean Penal Code. For such purposes, the method used is to examine separately and critically the main theses about the offended legal good, as well as the different interpretations offered in the Chilean doctrine on the scope that would have the clause “not being able but to know”, of article 456 bis A. As a result of the first point, the thesis defended is that receiving puts at risk the lawfully established markets, which is consistent with the status of economic crime that it may exhibit under Law 21.595. Regarding the second problem, it is concluded that the function of that clause is to operationalize an imputation of dolus ex re, the difficulties of which are illustrated by the cases of willful blindness.