Competition Law & Crime: Ideal vs. Real, Continued & Mass
Competition Law and Crime
1. Unit of Action and Multiple Offenses
Sometimes, one or more individuals commit two or more crimes through a single action or a series of actions. These situations are addressed in the Criminal Code (Articles 73-78).
Article 8 addresses cases where multiple legal provisions seemingly apply, but only one is truly relevant. Articles 73 and following concern the competition of crimes, while Article 8 reflects the competition of laws.
Traditionally, the study of crime competition is organized into ideal competition and real competition.
2. Unit of Action and Crime
Determining when actions constitute a single crime involves two factors:
- Final Factor: The underlying intent that connects multiple physical acts.
- Normative Factor: The legal definition of the crime. Separate acts, even with the same intent, may constitute different crimes (e.g., illegal possession of a firearm vs. murder).
Conversely, separate acts with different intents may be relevant only when considered together under a specific offense.
When a single action, based on these criteria, constitutes a single crime, we have the standard case. When a single or multiple actions constitute various crimes, issues of competition arise.
3. Unit of Action and Multiple Offenses (Ideal Competition)
Ideal competition (Article 77.1 of the Criminal Code) occurs when a single action violates multiple laws or the same provision multiple times. This can involve homogeneous crimes (e.g., a bomb killing multiple people) or heterogeneous crimes (e.g., a bomb killing people and causing property damage).
The key is defining “a single act,” which equates to a single expression of will resulting in multiple offenses. This single act must encompass multiple criminal elements (e.g., killing multiple people with one bomb).
Article 77.1 also addresses improper or medial competition, where one crime is a necessary means to commit another (e.g., forging a document to commit fraud). This close relationship between crimes requires a restrictive interpretation, applying only when one crime cannot occur without the other.
4. Multiple Actions and Crimes (Real Competition)
Real competition occurs when multiple actions each constitute a separate offense. The principle of accumulation generally applies, meaning penalties are combined.
5. Continued and Mass Crime
A continued offense (Article 74) involves two or more homogeneous actions committed at different times, violating the same or similar legal provisions. Each act constitutes a crime, but they are considered a single crime for sentencing purposes. Elements include:
- Objective: Similar legal harm, similar methods, spatial and temporal connection.
- Subjective: Common criminal intent across actions.
A mass crime involves a plurality of undifferentiated victims, from whom the perpetrator seeks to obtain funds with a single intent of enrichment. This is treated as a single crime based on the total amount defrauded.
Article 74 does not apply to cases specifically addressed in other provisions (e.g., Articles 250.1, 234.2, 244.1).