|
III
- The so called virtual manager As many reasserted, the crime about
which at article 2621 n. 1 c.c. presumes a special personal position
of the acting subject, position that is defined as of warranty for entrusting
him the safeguard of the protected interests.
To such personal position it can be attributed different intensity meanings,
according to the fact it refers to the required professional qualifications,
that means the concrete practice of the functions corresponding to the
required professional qualifications.
This last solution is the one followed the most by jurisprudence that
coined, by giving in fact relevance to the practice of the functions
to which the crime norm refers to, the figure of the so called virtual
administrator.
As
already highlighted, in the Italian legal system the figure at matter
is matrix of jurisprudence. More exactly it dates back to 1926 the first
sentence by which the Court of Cassation inaugurated this interpretative
trend. Further, it must be taken into account that the interpretation
principles we are going to examine have been mainly formulated in relation
to the bankruptcy crimes (where such figure rises historically).
The circumstance that in our legal system the fatherhood of the figure
of the so-called virtual administrator was in fact the jurisprudence,
left surely margins of maybe too much approximation in reconstructing
the case. That's why several authors arrayed in positions, decisively
opposite to the configuration of such figure. Rather overcome by the
doctrine today dominating, some of them presented argumentations especially
suggesting. Among them, noteworthy is without any doubt Pedrazzi, who
moves from the relief that, in virtue of the sanctionative character
of the corporation crime norms, a professional qualification that must
not deemed as worthy attributed according to the civil right, would
not have importance neither within the ambit of the corporation crimes.
Against
such observations doctrine is instead ever steady in underlining the
ever increasing and acknowledged autonomous nature even of this sector
from the crime right. Just in order to tighten the interpretative links
concerning the operativeness of such institution, the legitimacy jurisprudence
set out that it is recognizable the liability of the virtual administrator
for violation of the duties related to the managing activity, when it
is not proved the extraneousness to this activity by the proxy. Also
the legitimacy jurisprudence has contributed to specify the institution
at matter, by individuating two parameters, the first constituted by
the position in concrete took on by the virtual administrator, fit to
make offence or to endanger the interests safeguarded by the norm, and
the second one constituted by the attribution of the decisional power
concerning the management of the corporation capital. In an early study
carried out by Bricchetti and concerning the false accounting, he dealt
with some items, especially hard about the following points:
|
