Organizzazioni complesse e concorso di persone nei reati economicipunti di emersione di una responsabilità di posizione dei vertici d’impresa

Abstract

Modern corporate dynamics constitute a solid test for the traditional categories of criminal law. The hermeneutic and operational problems emerging from the liability hypotheses of company directors with reference to economic crimes are direct evidence of this. In fact, jurisprudence tends to forge imputative paradigms based on the failure to prevent the offence of others, often determining authentic responsibilities for the mere position, in open contrast with the constitutional statute and in particular with the principle of responsibility for one's own and culpable fact. In particular, two specific critical situations can be identified: the liability of the de jure director with respect to offences committed by the de facto director and the liability of non-executive directors with respect to offences committed by managing directors. Moreover, the interference between the supplementary incrimination clauses of Articles 40 and 110 of the Criminal Code, in their congenital vagueness, represents an elastic instrument, extremely versatile from a repressive point of view, to overcome the evidentiary difficulties presented by the elusive interactions occurring between the directors within complex organisations. Evidentiary shortcuts are thus introduced simplifying the moment of the trial verification, producing not only an uncritical attribution of positions of guarantee and a 'volatilisation' of the causal link between the alleged omitted conduct and the unprevented event, but also assertions of liability by way of will in the face of negligent criteria. The interpreter is therefore forced to deal with unpublished and heterogeneous imputative paradigms, where the elements of the offence tend to overlap with each other or to be dispersed in the trial verification. Therefore, the expansion of the jurisprudential formant is inevitable, to which is entrusted that predictability that constitutes the indispensable requirement for any assertion of liability.