What is a continuing tort – is a legal doctrine that allows an injured party to bring a claim for damages. Even if the defendant’s allegedly wrongful conduct occurred outside of the statutory limitations period. The rationale behind this doctrine is that the wrongdoer should not be allowed to escape liability. Simply because the victim did not discover the injury until after the limitations period had expired. Although the concept of a continuing tort is well-established in law. There is considerable disagreement among courts as to when it applies.
What is a continuing tort?
Concurrent issues arise whenever courts have to adjudicate complex situations involving multiple actions. The continuing offense therefore takes on its full meaning in this context.
The continuous tort, understood in the context of competitions in criminal law, is a concept of a certain complexity. In fact, one of the classic problems of criminal justice is the resolution of the aforementioned contests. Which can be crimes or laws.
The competitions appear to resolve situations in which the same criminal act may violate two or more articles of the Penal Code or different laws. It may also happen that the offender has committed the same crime several times. For example, a person who stole five times in a month. Or that two or more different crimes were committed at the same time. For example, rape and murder.
Thus, contest problems arise whenever courts have to adjudicate complex situations involving multiple actions. The continuing offense takes on its full meaning in this context.
Differentiating competition of laws and competition of offenses
As mentioned previously, specific contest resolution rules are necessary when one of these two situations arises.
First, when the fact can be governed by several provisions, all of which appear to be applicable, we are faced with a competition of laws. For example, shooting someone, so the attempted murder or grievous bodily harm applies.
The resolution of this contest relates to the theory of interpretation. This consists in identifying which norm fits most exactly to the act committed, excluding the others.
On the other hand, there is concurrence of misdemeanors whenever one or more actions simultaneously. Violate more than one criminal precept, or several times the same one, giving rise to several misdemeanors. In these cases, there are specific rules for the application of the sentence. Which vary according to the offense in question (real, ideal or medial).
Continuing tort: what does it consist of?
It may happen that a person commits several acts giving rise to different criminal offences. But that, due to the existing link between these acts. They are legally considered as a single – continuous – offense and sanctioned by a single sentence.
Thus, it is a question of grouping together in a single crime a series of homogeneous acts. Which were carried out at different times, but obeying a unit of criminal resolution (the same type of crime).
This figure, regulated in CP art.74, comes from the real competition with a double purpose:
On the one hand, it aims to fight against the excessive severity of penalties in the event of recidivism. Historically, the death penalty could be pronounced by accumulation of sentences for minor offences.
On the other hand, it also served to overcome some of the drawbacks of the legal accumulation system typical of real competition. Especially in property crimes.
It should be mentioned that, although the continuous offense is fully established in our law. It was already so before its express regulation in the Criminal Code, as it has been accepted by the jurisprudence-, it remains a controversial figure . Part of the doctrine considers him a useless and disturbing figure in the ordinary competition system.
Continuing offense requirements
In order to determine the existence of a continuing offence, a series of requirements (objective and subjective) must be known:
First, the same author (in any of the forms of authorship) must have committed a plurality of tortious acts or omissions. Although this does not prevent the intervention of third parties, only in some of the infringements.
These acts must lead to the violation of the same or several criminal precepts of the same nature.
There must be a connecting element between the actions. As if they all fit into a preconceived plan or happen by taking advantage of the same opportunity, which requires a certain spatio-temporal connection.
The victim may be the same person or someone different in the various violations.
It is important to note that crimes against eminently personal property are excluded from the continuity. They cannot constitute a continuous crime, with the exception of those which threaten honor and sexual freedom and indemnity which affect the same passive subject.
Jurisprudence was initially reluctant to accept penal continuity in sex crimes. However, it is now applied without problems.
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Vogue Health Team