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I-A preliminary matter:
criminal law in enterprises and individuation of the crime liable subject
The study of the so-called
enterprise criminal law places the interpreter in face of the delicate
problem of individuating the crime liable subjects.
Indeed, called into
play, there's the requirement to make meet the performance of the constitutional
principle of the personality of the criminal liability and the enterprise
reality that imposes, in order to achieve the efficiency of its own
organization, the repartition of functions among many subjects.
The vexata questio
leaded to several interpretative solutions. Among them, the one the
most followed by doctrine and jurisprudence since the first years of
the seventieth, substantiates into the criterion of the criminal liability
indictment asserting the liability of the subject personally obliged
to perform the crime norm (C.of Cassation March 9th 1973).
It has been observed
on the other side by some authors that the acceptance of the mentioned
criterion arises the question of the limits within which it accounts,
to crime purposes, the internal organization norms.
II
- The administrator's criminal liability for the so-called company crimes.
The main law source
in corporation crime matter is constituted by the XI Title of the V
Book of the civil code: "Company and consortia crime disposals ".
All the crimes stated
by the law whole at matter belong to the category of the so-called special
or exclusive crimes. The mentioned criminal offence indeed may be carried
out by special subjects, as administrators or boards of directors, mainly,
named by the constitutive act or by the partners meeting.
Administrators are charged
of the obligation of no competition, they must refrain from conflicts
of interests, in case, and they must carry on their tasks with mandatary's
application.
It's exactly inside
such duties and tasks that place the several crime sanctions foreseen
on charge of administrators. The most important crime cases substantiate
in the following crimes:
- False corporate information
(art. 2621 n. 1);
- Illegal profit distribution
(art. 2621 n. 2);
- Employ and disclosure
of corporate classified information (art. 2622 c.c.).
To the sole administrators
it is instead devoted art. 2623 c.c. that, under the heading "Violation
of obligation on charge of administrators", outlines three different
crime figures:
1) Contributions of
capital or merger with other companies.
2) The return of the
contributions to partners, in an evident way or by sham ways, or the
partners' release to make contributions, out of the case of reduction
of capital;
3) Finally it is punished,
ever with the imprisonment from six months to three years and with a
four million lire penalty, the administrator that prevents the control
of the corporation management by the board of auditors.
Ever to sole administrators
it is devoted the article by which it is punished with imprisonment
and a four hundred thousand lire penalty the crime according to which
the administrator bargains loans under any form with the company he
manages, or a company that the former controls or a company by which
is controlled, or that makes someone lend him bonds for one's own debts
by one of this companies.
Other crimes foreseen
ever on charge of administrators are:
- Fraudulent transactions
on company's securities;
- Contributions in kind
or company assets excessive evaluation;
- Irregular shares issue
or share assignation;
- Forbidden shares
purchase;
- Conflict of interests.
Let's pause upon the
first indictment, the crime of false corporation information: the norm
inflicts the sanction of imprisonment form one to five years and a penalty
from two million up to twenty million lire. Active subjects of the crime
at matter can be the promoters, the incorporators, the administrators,
the general manager, the auditors and liquidators who, in reports, balances
or other corporation information fraudulently expound facts not corresponding
to true.
It's convenient to state
exactly that, notwithstanding the word of the norm refers clearly to
"administrators", it's deemed punishable the typical activity, even
that of the governing directors, or generals directors and members of
the board of directors and executive committees. As it is well known
the civil position of administrators and the crime consequences are
deeply different according to the kind of society subjected to registration.
For short I'll pause
upon the public limited companies. In this corporation typology the
administrative organ is usually collegial with assignment of delegacies.
This point, it is proper to resume the matter concerning the delegacy
of functions and the limits of its prospective justifying efficacy.
This import it takes
special importance stating the limits within which the internal organization
norms may, by the means of proxy or nomination acts, concur along with
the general law. About, the prevalent opinion attributes objective importance
to the delegacy of functions, by distinguishing the commissive cases
from the omissive ones.
As regard to the first
ones it works the general principle by which the action crimes are charged
to the subjects that concretely put them in act and only them. As regard
to the omissive case, the legalness jurisprudence deems that the proxy
could have a justifying efficacy. As regard to the justifying efficacy
as regard to crime matters, the Supreme Court has stated that, in order
to not exhaust it in a mere mandate of execution, important only by
the sole subjective profile, the following elements are indispensable:
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