La Regularización tributaria como equivalente funcional de la pena retributiva

Abstract

Many continental legal systems criminalized tax evasion criminal offences. Many of them, Spain included, have also established an exceptional figure related to this offence: the so-called "tax regularization clause". This institute allows the perpetrator to avoid the criminal consequences from the tax evasion. After a critical consideration of the theories regarding the foundation and nature of the institute, the article formulates an alternative interpretation of the "tax regularization clause". In order to do so, the article assume a retributive-communicative theory of punishment and define the "tax regularization clause" as an act from the perpetrator that is factually different but functionally equivalent to the duty to bear the punishment. This perspective, I believe, not only provide a solid basis for the interpretation of the institute's elements, but also achieves a systematically coherent explanation of its legal consequence: the complete inhibition of the State's right to punish the perpetrator.