Willful misconduct: Knowledge and will?

Abstract

Willful misconduct, from the most doctrinally accepted perspective, is made up of two elements: knowledge and will. Although the established doctrine has developed these elements in a neat and convincing manner, the problems are reflected in their application during criminal procedures, where the subjective element of the will (the most problematic), seems impossible to prove and, in this context, the real application of the concept could be interpreted as contradictory with its elements. Therefore, we observe the application of the theory of probability, the deduction of the volitional element based on the knowledge of the elements that make a behavior typical, or even the lack of valuation of the will in the concrete case. This leads us to wonder if the will is necessary for the foundation of willful misconduct or if it is a doctrinal criterion of impossible practical application. The answer, from the perspective of this article, will be found in the jurisprudential development and, to a certain extent, in that minority doctrine that considers that the volitional element is irrelevant to the configuration of willful misconduct.