|
Art.
2621 n. l. c.c., examining it well, stresses upon the extension of the
powers due to the interests protected by the indicting case at point,
and as correctly observed, it's not a case the jurisprudence outstands
the functional aspect of such an anomalous and recurrent figure (BRICCHETTI,
op. cit. p. 88).
Ever
the legitimacy jurisprudence has asserted that, already starting the
seventies, as in case of the administrator, it may be configured, as
an active subject of the crime of false corporation information, even
the virtual general director, being no doubt about the fact that such
crime can be committed even by whom has practiced in fact the functions
of general director, not being required a formal relationship between
the offender and company (Crime Cassation, July 16th 1976).
As
it is easy intuitable the objections already made in order to the easy
elusion of the principle of imperativeness due to indeterminateness
of the functional criterion in point of the virtual administrators'
criminal liability, get more pressing in the case of the general manager,
in front of the criticisable trend to extend even more toward the low
social body forms of responsibility that are instead typical of the
organ of management and command of the activity.
V
- The problem of the so-called corporate crime Of no easy solution is
the matter lying over conjecture by which the crime is put in act by
the means a corporate act, as in the case when the Board of directors
carries out a reduction in capital in violation of articles. 2306, 2445
e 2623 n. l. civil code. Already under the disposal of the 1882 trade
code, in case of deliberations putting in act a crime it arose the problem
about the nature and the limits of liability of the members belonging
to the deliberating body. Already then, as punctually observed by the
Accounts (Crime disposals about corporations and consortia, Zanichelli
ed., Bolonia III ed., 1988), it was invoked themes drawn from the civil
liability discipline to assert that only acts able to exclude liability
(recording without delay, by the subject exempt of culpability, on the
deliberations book and written information to auditors) were fit to
prevent the indictment, not being enough that any subject would have
manifested his own dissent. The matter is still a current topic.
According
to a first doctrine trend the corporate crime must be framed inside
the multi-subjects crimes or necessary conspiracy meaning that, in order
to have the offence, it would be necessary the presence of the less
number of subjects useful to compound worthy the college.
Further
it must be deemed liable the dissenting member that would have not performed
what disposed by art. 2392 civil code that is the recording on the board
of directors meetings and deliberation book and written communication
to the president of the board of auditors. Against such interpretative
trend it has been observed that the corporation crimes does not refer
to corporate bodies, as for example in the case of the sole administrator,
it does not look congruous to exclude the criminal liability in the
conjectures of irregular composition of the body, when, civil effects
level, it is discussed, what's more, the opportunity to contest the
void council deliberations out of the conjectures about which at art.
2391 civil code (conflict of interests).
By
another viewpoint it has been stated exactly that it looks unequal to
anchor the administrators' criminal liability to the performance of
the forms disposed at art. 2392 civil code as regard to the administrators'
liability toward corporations. This purpose, it is referred to the treatment
that would be reserved to the administrator, who, even if making his
dissent formally expressed, he worked really to make being approved
by other administrators the deliberations constituting offence, or the
administrator that, even if having opposed actively, does not perform,
for negligence, the disposals at art. 2392 civil code. Just at the light
of such considerations, authors trend to deem the so called corporate
crimes, as mono-subjective simple crimes and prospective conspiracy
(as for example it is required an agreement among subjects) and not
those, of mere civil kind, that rule the working and the liabilities
of the corporate body.
|
