With the enactment of Law 14.478/2022 [1], Article 171-A of the Penal Code was introduced, typifying an offense similar to fraud but specifically involving “virtual assets, securities, or any financial assets.” Given its connection to so-called cryptocurrencies (virtual assets), this offense has even been referred to as “crypto fraud” [2]. However, this label seems somewhat exaggerated. In fact, some rightly prefer to use the exact terminology of the legal provision to name the crime under Article 171-A of the Penal Code. Thus, without any need for major innovation, the offense can simply be called “fraud involving virtual assets, securities, or financial assets,” as suggested by Souza [3].
However, despite our reluctance to adopt the term “crypto fraud,” the similarity and proximity of Article 171-A to the traditional fraud offense defined in Article 171 of the Penal Code are undeniable.
Thus, it is intuitive to assume that the two offenses share a relationship of specialty, in which Article 171-A of the Penal Code would take precedence in an apparent conflict of norms [4], as it presents an additional element compared to the basic fraud offense under Article 171. However, this is merely a first impression that many may have. A closer reading of the legal provisions reveals that the issue is rather complex, as some of the boundaries between the two crimes are blurred. [4], posto que o artigo 171, do CP seria dotado de um plus frente ao tipo penal base. Entretanto, essa é só uma primeira impressão que muitos podem ter. A partir de uma leitura atenta dos tipos penais, o leitor perceberá que a questão é um tanto quanto tormentosa; algumas das fronteiras de ambos os crimes estão esmaecidas.
The crime of fraud, as defined in Article 171 of the Penal Code, consists of the act of “obtaining, for oneself or for another, an unlawful advantage to the detriment of others by inducing or keeping someone in error through deceit, trickery, or any other fraudulent means.” In this case, the victim is deceived and voluntarily performs an act of disposal that results in the unlawful advantage [5].obter, para si ou para outrem, vantagem ilícita, em prejuízo alheio, induzindo ou mantendo alguém em erro, mediante artifício, ardil, ou qualquer outro meio fraudulento”. Aqui, a vítima é enganada, sendo conduzida a realizar o ato voluntário de disposição que resulta na vantagem ilícita [5].
The verb “obtain” indicates a result-based crime [6], as the perpetrator must effectively secure the unlawful advantage for the crime to be considered complete, which only occurs after the fraud has been carried out. It is a material crime, leaving no room for doubt. [6], pois o agente tem de efetivamente conseguir a vantagem ilícita para que o crime esteja consumado, o que somente ocorre após a realização da fraude. Trata-se de crime material, sem a menor chance de dúvidas.
On the other hand, the structure of Article 171-A of the Penal Code is different, as it criminalizes the act of “organizing, managing, offering, or distributing portfolios or intermediating transactions involving virtual assets, securities, or any financial assets with the intent to obtain an unlawful advantage to the detriment of others by inducing or keeping someone in error through deceit, trickery, or any other fraudulent means.”organizar, gerir, ofertar ou distribuir carteiras ou intermediar operações que envolvam ativos virtuais, valores mobiliários ou quaisquer ativos financeiros com o fim de obter vantagem ilícita, em prejuízo alheio, induzindo ou mantendo alguém em erro, mediante artifício, ardil ou qualquer outro meio fraudulento”.
These verbs, per se, do not inherently imply harm to the protected legal interest. Organizing, managing, offering, or distributing portfolios, as well as intermediating transactions, are actions that do not necessarily presume such harm. As a result, some argue that this offense should be classified as a formal crime.
The traditional form of fraud.
The issue, however, is not so simple. This is because the legal provision explicitly includes the requirement of harm to others in its wording. Based on the literal interpretation of the provision, there are two possible ways to approach this matter:
(i) The harm to others can be understood as an objective requirement of the offense, closely aligning it with the traditional fraud offense, making it a crime of harm and result[8];
(ii) It can be argued that it actually pertains only to the content of the special subjective element of the offense [9], that is, the intent to obtain an unlawful advantage, which inherently implies harm to others. From this perspective, the offense would, in fact, be classified as a formal crime.
There are strong reasons to support the first interpretation for various factors. Beyond its systematic placement, which suggests it is a type of fraud or something closely related, an analysis of the proportionality of the prescribed penalty also indicates that it should be classified as a crime of harm.
It would be, at the very least, a contradiction if, between two offenses that protect the same legal interest and share similar unjust elements, the one with the harsher penalty did not even require actual harm to that legal interest. A comparable offense to Article 171-A of the Penal Code—electronic fraud, the qualified form of fraud under Article 171, §2º-A—coincidentally or not, carries the same penalty as Article 171-A. From a systematic perspective, it would therefore be unreasonable for Article 171-A not to require actual harm to the legal interest for its consummation.
Furthermore, another key factor reinforces this reasoning. It would be difficult to conceive of obtaining an unlawful advantage without causing harm to another, particularly within the context of this specific offense. Thus, interpreting the phrase “to the detriment of others” as merely part of the special intent element would render it almost redundant. A far more reasonable conclusion is that this harm is, in fact, an objective element—a required result under the legal provision—making it imperative to classify the offense as a crime of harm and result.
Moreover, there is another relevant factor. It would be difficult to conceive of obtaining an unlawful advantage without causing harm to others, especially within the context of the offense in question. Thus, it would be almost a redundancy if the phrase “To the detriment of others" would be almost redundant if understood as part of the special intent element. It is much more reasonable to assume that this harm is, in fact, an objective element—a required result under the legal provision—making it imperative to classify it as a crime of harm and result.em prejuízo alheio” fosse entendido como elemento do especial fim de agir. Muito mais razoável é supor que, na realidade, esse prejuízo é, de fato, um elemento objetivo, um resultado exigido pelo tipo penal, o que torna imperativo concebê-lo como um crime de lesão e de resultado.
This, however, does not settle the issue regarding the relationship between Articles 171 and 171-A of the Penal Code. Although both offenses require a harmful result to the protected legal interest, they seem to differ—due to their distinct verbs—regarding the moment when the execution begins.
In theory, for example, by organizing portfolios involving virtual assets with the intent to obtain an unlawful advantage, the perpetrator is already, at the very least, within the scope of an attempted offense under Article 171-A of the Penal Code. On the other hand, if this provision did not exist, only Article 171 would apply, and such portfolio organization would likely be considered merely a preparatory act in relation to the crime. In the case of Article 171-A, there is no classic dual causality, in which, before the occurrence of the first causal link—where fraud acts as the cause and deception as the result—only preparatory acts can be considered. [10].
The relationship between the articles is not one of specialty.
With this, we already have an answer: no, the relationship between Articles 171 and 171-A of the Penal Code is not one of specialty. Strictly speaking, specialty exists when all the constitutive elements of one offense are also present in another, but are not sufficient for its configuration, as the latter contains at least one additional constitutive element. [11] In other words, for there to be specialty, the specific offense must be entirely (in totum) encompassed by the general offense; whenever a special offense occurs, the general offense must also be applicable to the case.
And this is not the case here. Not all acts that fall under Article 171-A of the Penal Code would also constitute the punishable conduct described in Article 171. This is due to the factor mentioned earlier: Article 171-A, in a way, anticipates the scope of punishability compared to Article 171. Certain acts that would already be considered an attempt under Article 171-A would merely be preparatory acts in relation to classic fraud.
This does not mean, however, that there is no apparent concurrence of norms. On the contrary, the offenses in question fundamentally share the same basis of unlawfulness: crimes against the same legal interest (property), carried out through identical wrongful means (fraud), resulting in the same outcome (financial harm); even the special intent is the same in both cases (obtaining an unlawful advantage).
There is a complete alignment of unlawful elements, making the principle of absorption imperative [12], which governs the apparent concurrence of norms. The issue here is merely identifying the specific criterion of absorption that applies to the legal relationship.
Among the criteria of consuption and subsidiarity, which, alongside specialty, seem to enjoy a certain consensus [13], the relationship between the scrutinized offenses appears to align more with the idea of subsidiarity [14]. Subsidiarity is defined as a situation in which a criminal provision is only applicable as an auxiliary measure in a specific case when it is impossible to apply another, more severe provision [15]–[16].
In casu, classic fraud will be subsidiary to the fraud defined in Article 171-A of the Penal Code, being applicable only in circumstances where the latter is not possible [17]. Since this subsidiarity is not explicitly stated in the law, it is, naturally, implicit.
It is certain that more issues regarding Article 171-A could be raised, such as the legislator’s choice of its placement within the legal framework, its legal interest, and the concept of virtual assets [18]. However, since such discussions would lead the reader away from a more grounded initial dogmatic debate and into a more abstract analysis, which is harder to reach consensus on, this study has opted for a more restricted scope. Nevertheless, it leaves open the promise of expanding this discussion in a future work.
Final Considerations
By way of conclusion, two points deserve special attention:
1- Article 171-A of the Penal Code, referred to by some as "crypto fraud" and by others as "fraud involving virtual assets, securities, or financial assets," is a crime of harm and result, meaning it is a material offense.
2- Although Articles 171 and 171-A of the Penal Code share several similarities, their relationship is not one of specialty. However, it is also not a case of formal concurrence between the two provisions. Instead, there is a true apparent concurrence of norms, governed by the criterion of subsidiarity in its implicit form.
[1] Cf. https://www.camara.leg.br/noticias/931195-entra-em-vigor-lei-que-regulamenta-setor-de-criptomoedas-no-brasil/
[2] COSTA, Adriano Sousa et al. Cripto estelionato: os impactos legais da Lei nº 14.478/2022. Consultor Jurídico, disponível aqui.
[3] SOUZA, Luciano Anderson de. Direito penal: parte especial. Vol. 3. São Paulo: Thomson Reuters Brasil, 2023, p. 237 e ss.
[4] Sobre o tema, cf. HORTA, Frederico. Do concurso aparente de normas penais. Rio de Janeiro: Lumen Juris, 2007.
[5] SALVADOR NETTO, Alamiro Velludo. Arts. 155 a 183. In: REALE JÚNIOR, Miguel (coord). Código penal comentado. São Paulo: Saraiva, 2017, p. 542.
[6] Cf. ROXIN, Claus; GRECO, Luís. Direito Penal: Parte Geral. Tomo I: Fundamentos – A Estrutura da Teoria do Crime. São Paulo: Marcial Pons, 2024, p. 542, which, admittedly, refers to fraud under the German Penal Code; however, since it has a structure similar to Article 171 of the Brazilian Penal Code, the considerations made there are applicable here.
[7] Thus, explicitly, SOUZA, Luciano Anderson de. Direito Penal: Parte Especial. Vol. 3. São Paulo: Thomson Reuters Brasil, 2023, p. 238.
[8] Contrary to what a less trained reader might think, offenses of harm are not synonymous with result offenses, although it is quite common for result offenses to also be offenses of harm and vice versa. Offenses of harm are those in which their consummation presupposes the effective impact on the legal asset. The so-called result offenses are those in which there is a spatiotemporal gap between conduct and result. Cf., among others, ROXIN, Claus; GRECO, Luís. Direito Penal: Parte Geral. Tomo I: Fundamentos – A Estrutura da Teoria do Crime. São Paulo: Marcial Pons, 2024, p. 542 et seq.
[9] Denominated by some sectors of doctrine as specific or special intent.
[10] BITENCOURT, Cezar Roberto. Commented Penal Code. 10th ed. São Paulo: Saraiva Jur, 2019, p. 1371.
[11] HORTA, Frederico. Do concurso aparente de normas penais. Rio de Janeiro: Lumen Juris, 2007, p. 88 e 115.
[12] Cf. GRECO, Luís; LEITE, Alaor. Concurso de delitos: uma primeira tentativa de reorientação. Revista do Instituto de Ciências Penais, Belo Horizonte, v. 7, n. 1, p. 131-158, 2022, p. 142 e ss.
[13] GRECO, Luís; LEITE, Alaor. Concurso de delitos: uma primeira tentativa de reorientação. Revista do Instituto de Ciências Penais, Belo Horizonte, v. 7, n. 1, p. 131-158, 2022, p. 154.
[14] Cf. HORTA, Frederico. Do concurso aparente de normas penais. Rio de Janeiro: Lumen Juris, 2007, p. 90-91.
[15] Assim, expressamente, ROXIN, Claus. Derecho penal: parte general, tomo II. Trad. Diego-Manuel Luzón Peña, José Manuel Paredes Castañón, Miguel Díaz y García Conlledo e Javier de Vicente Remesal. Navarra: Thomson Reuters, 2014, p. 1003: “Concurre subsidiariedad cuando sólo se debe castigar por un tipo si no interviene otro tipo que prevé una penalidad más grave”.
[16] It is quite common to find misleading explanations in Brazil regarding the concept of subsidiarity in the context of the apparent concurrence of norms. Often, the ideas of specialty and subsidiarity are confused, as if the latter were actually the former. In the notion of specialty, the special type is logically inserted, in totum, within the general type. Here, indeed, there is a relationship between two circles, where the smaller circle (special type) is entirely within the larger circle (general type). In cases of subsidiarity, one type is subsidiary to another only in the area where there is an intersection between them. Here, the relationship is different from that of specialty. A very clear excerpt from Roxin’s teaching on the subject states: "Lex primaria derogat legi subsidiariae: the primary law prevails (overrides) the subsidiary law; the subsidiary law retreats in the face of the primary law. From a logical point of view, this generally represents a case of interference (intersection). For example, the fraudulent or abusive use of automated machines (§ 265a) in some situations is simultaneously a theft (in the case of vending machines selling goods), but not in others (in the case of automated service machines)." Translation of ROXIN, Claus. Derecho penal: parte general, tomo II. Trans. Diego-Manuel Luzón Peña, José Manuel Paredes Castañón, Miguel Díaz y García Conlledo, and Javier de Vicente Remesal. Navarra: Thomson Reuters, 2014, pp. 1003-1004: "Lex primaria derogat legi subsidiariae: la ley prioritaria (primaria) precede (deroga) a la ley subsidiaria; la ley subsidiaria retrocede tras la ley primaria. Desde puntos de vista lógicos representa por regla general un supuesto de interferencia (intersección). Por ejemplo, el uso fraudulento o abusivo de máquinas automáticas (§ 265a) en una parte de los supuestos es simultáneamente un hurto (en caso de máquinas expendedoras de artículos), pero en otra parte (en el caso de máquinas automáticas de prestación) no."
[17] Cf. SOUZA, Luciano Anderson de. Direito Penal: Parte Especial. Vol. 3. São Paulo: Thomson Reuters Brasil, 2023, p. 240, which, although not explicitly addressing the rule of subsidiarity, effectively applies it in practice by asserting a hypothesis of subsidiary application of fraud in cases where he believes that not all the typical requirements of Article 171-A of the Penal Code are met.
[18] For a conceptual analysis of cryptocurrencies, see: SANTIN, Janice; LOBATO, José Danilo Tavares. Cryptocurrencies and Criminal Law: A Study on the Criminal Perspectives of the Use of Cryptographic Currencies. Revista de Estudos Criminais, Porto Alegre, v.78, year XIX, Jul-Sep, 2020, p.159 et seq.