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1)
The title in force of which the virtual administrator is liable by the
crime point of view;
2) his relationship with the administrator as of right in conspiracy;
3)
the residual responsibility in charge of the administrator as of right
that in fact is simply a figurehead.
1) It is asserted that the virtual administrator is liable for corporation
and bankruptcy crimes by himself in relation with the concrete functions
practiced, and as the end of the indictment norm.
2)
The virtual administrator is responsible concurring with the administrator
as of right on the base of the ordinary rules of conspiracy.
3) Debated in jurisprudence is instead the permanency of the responsibility
of the administrator as of right, mainly when the concern is a mere
figurehead.
Without
any doubt, according to jurisprudence, the administrator as of right
cannot think useful he can exonerate from the crime liability by pleading
the presumed existence of virtual administrators. Nevertheless, while
some sentences state the crime liability of the figurehead even in the
case he was in fact extraneous to the administration, other decisions
assert that the formal qualification of administrators does not involve
automatically a verdict of culpability since the opposite opinion would
be clearly in disagreement with the personal liability about which at
art. 27, I comma Cost. Along the same interpretative wake it has been
deemed as liable the figurehead that participates steadily to the corporation
management and has customs of life in common with the virtual administrator,
such to make consider as integrated the elements of the material behaviour
and the awareness as regard to the the casual personal contribute).
Peculiar
at all in comparison with the mentioned jurisprudential context, it
looks the sentence on November 16th 1994, by which the Supreme Court
asserted that the virtual administrator might be deemed as liable of
offence. Specially referring to the crime of false accounting it must
be considered that it is not surely unusual in praxis an administrator
that makes him liable of the offence about which at art. 2621, n. 1
civil code, not only as regard to the forms of falsehood in other corporate
information, but also those proper of the balance and other reports.
IV - General managers 's criminal liability: critical notes to the indetermination
of the functional criteria Among the active subjects of the crime of
false corporate communications it appears the figure of the general
director. The exact definition of this figure is not simply, being controversial
inside the same trade doctrine. A sure data is that it is different
from the administrators as defined by doctrine and jurisprudence as
bodies of a corporation independently from the juridical nature of the
existing bond.
General managers may be defined as “the executors of very high level,
empowered with a certain functional decision and within such limits
also executive decisional autonomy, normally bond to the enterprise
by a labour/employment contract “ (this way BRICCHETTI, op. cit. who
his turn recalls ABBADESSA, I Direttori generali. In Trattato delle
società per azioni Torino 1991, p. 416 and following). It can occur
also, on the other side, that the General Managers are external individuals
not framed inside the enterprise, and this case, they assume the capacity
of mandatory of the enterprise. Stated the compatibility of the administration
relationship and subordinate job, the civil jurisprudence acknowledges
that the same subject assumes both professional qualifications of general
director and administrator, provided that, obviously, is anyhow subjected
to the activity of manager by the body of administration.
From
that it comes the impossibility that the general director assumes also
the professional qualification as sole administrator. Provided that,
the most important problem by the crime viewpoint is that to define
punctually the figure at matter, provided that, only in this figure
it finds application art. 2621 n. l c.c., within the range of the cadres,
even managerial of the corporation.
About
this point doctrine wonders about the possibility to make coincide the
general director about whom the doctrine declares norms by the means
of the figure outlined at art. 2396 c.c. with the purpose to extend
the civil liability toward society, creditors, third parties, and single
partners about which at art. 2392 c.c. and following. Art. 2396 c.c.
points which General managers are liable of civil liability among those
named by the meeting or on disposal of the constitution act in relation
with the tasks entrusted to them. Some authors adopted this criterion
in order to the exemption from punishment of the corporate crimes, deeming
indispensable a formal investiture (for all cf. PEDRAZZI, op. cit. p.
267). Indeed is the same Report of the Minister of Justice to the R.D.
n. 107 February 16th 1942 to turn into unacceptable such interpretation,
whereas expressly declares that the notion of general director does
not match with the one about which at art. 2396 c.c., even more if considering
that the opposite opinion is not consistent with the criterion of the
substantial functionality to which our crime right takes inspirations
from.
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