Corporations and ‘Double-Track Punishment Systems’. Notes on Meta-Individual Structure of Double-Track Sanctioning
The paper focuses on ‘double-track sanctioning systems’ on legal persons from a European ne bis in idem perspective. In addition to highlighting the peculiarities of the said punitive models on market abuse and tax offences, some reflections are devoted to the ‘connection test’ at European level.
The entry of tax offenses into Legislative Decree 231/2001 as a result of Law 157/2019, now followed by Legislative Decree 75/2020, appears completely physiological, in light of the structure and the rationale of corporate liability and furthermore it constitutes a late response to that substantive tendency which has hitherto fueled interpretative distortions in malam partem. Overall, the system seems to offer already possible remedies, in terms of the sanctioning proportion, to potential collisions with the ne bis in idem declined according to the parameter of the idem factum and on the basis of the jurisprudential criteria of substantial and procedural connection, with particular regard the regulation of the payment of the tax debt. Nonetheless, the legislative intervention appears at times incomplete or ambiguous but, at the same time, it lends itself to initiating a decisive case law revirement in terms of delegation of functions
Law Decree no. 124/2019, later confirmed by Law no. 157/2019, the lawmaker modified significantly tax criminal offences, providing also for the applicability of the so-called ‘enlarged’ confiscation under art. 240-bis of the Italian Criminal Code and inserting certain tax crimes in the list of offences that trigger corporate liability. This paper aims to highlight – on one hand – the (re)organizational burdens on companies, in order to update their compliance models, and – on the other hand – the relevant systemic inconsistencies in respect to the relationship between individual and corporate liability.
The SARS-CoV-2 pandemic had dramatic effects on every aspect of social life, including work in public and private organizations. Among the stratified and flooding anti-contagion rules issued – and constantly updated – both at a national and local level, as well as at a general and sector level, a relevant role is played by governa- tive provisions and agreed protocols aimed at containing the infection risk in the workplace. This paper tries to overcome, in the first place, doubts and different views on the relationship between Covid-19 anti-contagion measures in the workplace and the legal framework on health and safety in the workplace outlined by Legislative Decree no. 81/2008, proposing a systemic connection. Furthermore, the paper explores the potential profiles of criminal liability of individuals and corporations under art. 25-septies of the Legislative Decree no. 231/2001, highlighting – inter alia – the limits of negligence-based result crimes in assessing the causal link between conta- gion and injuries/death of the victim, as well as the rationale and the limits of art. 29-bis of the Law Decree no. 23/2020, converted into Law no. 40/2020, having the aim to reduce the area of ‘generic’ negligence. The frantic lawmaking of the past months, now seen as eccentric and driven by the pandemic emergency, could nevertheless anticipate – for certain aspects – the future of criminal law related to safety in the workplace.
Rationalizing the provisions on “oblazione” in the corporate criminal liability, between rewarding and non punishability
The debate on the reform of corporate liability regulation, that for several years has been dormant, has recently rekindled, also following the experience of other legal systems. This research paper addresses the issue from the perspective concerning punishability. The broad range of legal arrangements that have been introduced into the legal system during the last few years – ranging from the fact judged as particularly tenuous to the suspension of the proceedings with probation – as well as instruments, such as “oblazione”, which have long been rooted and have spread in some strategic sectors of corporate crime, require a reassessment of the principle of autonomy with respect to corporate liability. Entrusting the solution of the problem to the rule set forth in Article 8 of Legislative Decree No. 231 of 2001 – therefore stating, in the light of the case-law, the absence of communication between reasons for exemptions from punishment applying to individuals and those applying to entities – must be reviewed in order to produce a set of instruments tailor-made for corporations. The aim of the paper is to analyze the conditions and prerequisites in order for the entity to be eligible in the future for “oblazione”, in the context of a broader reflection about rewards and about the options regarding exemption from punishment that should inspire a renewed corporate liability regulation in Italy.
The paper deals with the reformed article 348 of the Italian Criminal Code and its consequences on healthcare, usually affected by unlicensed practice more than other sectors. In particular, after assessing the main changes introduced by the so called ‘Lorenzin reform’, the paper focuses on cases of unauthorized practice in dentistry. Such offence, when committed by unlicensed dentists delivering their services through companies, may be even more harmful to clients and competitors, potentially calling for the application of corporate liability legislation (legislative decree 231/2001).
Big Data Analytics and Anti-corruption Compliance. Critical Issues of Current Practice and Future Scenarios
This paper addresses the issue of implementation of big data analytics techniques in public and private anti-corruption compliance, highlighting how this new practice can transform the current features of crime-risk prevention activities. The work is aimed at showing the potential benefits and risks related to the adoption of the said digital tools, as well as hypothetical future scenarios, including the perspective of regulating the use of such compliance systems also for purposes other than risk management.
Corporate criminal liability of small businesses aims at deterrence. In order to be compliant, however, these companies bear proportionally higher costs than medium-large companies: such a problem can be solved through collective actions and IT
Differently from the interpretation contra legem advanced by the Prosecutor Office, the supervisory body under article 31 bis 2.2° of the Spanish criminal code cannot be intended as a compliance officer. Following the Italian model, the legislator vested a body with the power to oversee directors and top managers, due to the impossibility to rely upon self-control of the said individuals