In accordance to the abovementioned, Hägerström concludes that Sterzel’s conclusions are scientifically as well a legally untenable; on one hand Sterzel claims to pursue jurisprudence from a positivistic point of departure,460 while simultaneously violating the basic tenets of positivistic penal jurisprudence (by construing an act of omission, fraudulent non-disclosure, as if it fell under the category of criminal act of commission, active fraudulent conduct,which was punishable according to the Swedish Penal Code Chapter 22, Section 1).461 What is even more interesting in this case is the fact that these different types of behavior, according to the constructive method, can be equated with one another despite the fact that the prevailing doctrines of penal jurisprudence expressly prohibit and preclude such unduly constructive interpretations of penal statutes (cf. the strict construction of penal statutes and the prohibition of analogies in penal law), and despite the fact that the provisions of the Swedish Penal Code clearly stipulate that the conditions for the punishment of fraudulent conduct must invariably involve an offence of an active nature - that is, that omissions are permissible and not punishable under this section of the Swedish Penal Code (cf. the principle of legality in penal law). Taking Hägerström’s analysis of Sterzel’s ideas as point of reference, Hägerström drew several conclusions. First, that Sterzel, on the basis of the concept of illegality, had created a new legal fact - fraudulent non-disclosure (Swedish: svikligt förtigande).462 Second, that Sterzel had connected this new legal fact to an already existing legal consequence in a manner that lacked support p a r t v i , c h a p t e r 7 522 460 Sterzel, Bidrag till läran om bedrägeribrottet, passim. 461 Hägerström, “Svikligt förtigande,” pp. 334-335. 462 Ibid.: pp. 325-327 and cf. 334-335. See Sterzel, Bidrag till läran om bedrägeribrottet, pp. 193-205. Sterzel discusses the distinction between criminal fraud and permissible disloyalty, and concludes that according to Swedish law the fraudulent action falls under the rules of private law, whereby ist criminal status is restricted by recourse to the the action’s illegality. Consequently, it is not impossible that this vague and indeterminate condition of illegality also constituted the decisive factor for the remainder of Sterzel's analysis.
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