La corruzione tra privati in Italia: un bilancio critico

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Abstract

Despite its relatively recent origins in the Italian jurisdiction (its introduction dating back to 2002), corruption in the private sector has lately acquired a new face with legislative decree 2017/38, which – in order to uniform it to the European standard of criminalisation – expands its criminalising scope with regard to both the range of offenders and the anti- cipation of the unlawful behaviour. The passage from the original formula- tion, limited to the corporate environment, to the current extension to all private entities, responds to the need for strengthening the action to contrast corruption, which keeps presenting such a pervasive character in the Italian reality to require a new commitment in the matter. The gradual diffusion of corporate criminal liability had already recalled the attention on such instru- ment with regard to corruption in the private sector, and such innovation had characterised a first significant amendment to the regulation (l. n. 190/ 2012). Besides, the original configuration of the offence expressed a logic of financial protection in respect of corporate assets which condition the entire structure of the unlawful conduct, whose influence makes it resistant to the modifications brought by the recent reform, which follow a different outline of the offence as regards both the harm and the relative technique of inter- vention. Particularly problematic is the connection between the relevance attributed also to the offer of undue advantages (and instigation to the unlawful conduct) and the maintaining of private charges (‘querela’) as a condition to prosecute. More generally, the situation highlights how the patterns of normative harmonisation of European derivation implant nor- mative solutions in the different legal szstems, thus determining coordina- tion problems which are not anymore entrusted to the traditional interpre- tative activity of internal courts limited to sources ordered in a unitary hierarchy, but which develop in the multi-level articulation of the current legal systems.
Lingua originaleItalian
pagine (da-a)564-596
Numero di pagine33
RivistaRIVISTA TRIMESTRALE DI DIRITTO PENALE DELL'ECONOMIA
Stato di pubblicazionePublished - 2017

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@article{1fcd3a6a7f2c4731bf08c9d89b5514d7,
title = "La corruzione tra privati in Italia: un bilancio critico",
abstract = "Despite its relatively recent origins in the Italian jurisdiction (its introduction dating back to 2002), corruption in the private sector has lately acquired a new face with legislative decree 2017/38, which – in order to uniform it to the European standard of criminalisation – expands its criminalising scope with regard to both the range of offenders and the anti- cipation of the unlawful behaviour. The passage from the original formula- tion, limited to the corporate environment, to the current extension to all private entities, responds to the need for strengthening the action to contrast corruption, which keeps presenting such a pervasive character in the Italian reality to require a new commitment in the matter. The gradual diffusion of corporate criminal liability had already recalled the attention on such instru- ment with regard to corruption in the private sector, and such innovation had characterised a first significant amendment to the regulation (l. n. 190/ 2012). Besides, the original configuration of the offence expressed a logic of financial protection in respect of corporate assets which condition the entire structure of the unlawful conduct, whose influence makes it resistant to the modifications brought by the recent reform, which follow a different outline of the offence as regards both the harm and the relative technique of inter- vention. Particularly problematic is the connection between the relevance attributed also to the offer of undue advantages (and instigation to the unlawful conduct) and the maintaining of private charges (‘querela’) as a condition to prosecute. More generally, the situation highlights how the patterns of normative harmonisation of European derivation implant nor- mative solutions in the different legal szstems, thus determining coordina- tion problems which are not anymore entrusted to the traditional interpre- tative activity of internal courts limited to sources ordered in a unitary hierarchy, but which develop in the multi-level articulation of the current legal systems.",
author = "Vincenzo Militello",
year = "2017",
language = "Italian",
pages = "564--596",
journal = "RIVISTA TRIMESTRALE DI DIRITTO PENALE DELL'ECONOMIA",
issn = "1121-1725",

}

TY - JOUR

T1 - La corruzione tra privati in Italia: un bilancio critico

AU - Militello, Vincenzo

PY - 2017

Y1 - 2017

N2 - Despite its relatively recent origins in the Italian jurisdiction (its introduction dating back to 2002), corruption in the private sector has lately acquired a new face with legislative decree 2017/38, which – in order to uniform it to the European standard of criminalisation – expands its criminalising scope with regard to both the range of offenders and the anti- cipation of the unlawful behaviour. The passage from the original formula- tion, limited to the corporate environment, to the current extension to all private entities, responds to the need for strengthening the action to contrast corruption, which keeps presenting such a pervasive character in the Italian reality to require a new commitment in the matter. The gradual diffusion of corporate criminal liability had already recalled the attention on such instru- ment with regard to corruption in the private sector, and such innovation had characterised a first significant amendment to the regulation (l. n. 190/ 2012). Besides, the original configuration of the offence expressed a logic of financial protection in respect of corporate assets which condition the entire structure of the unlawful conduct, whose influence makes it resistant to the modifications brought by the recent reform, which follow a different outline of the offence as regards both the harm and the relative technique of inter- vention. Particularly problematic is the connection between the relevance attributed also to the offer of undue advantages (and instigation to the unlawful conduct) and the maintaining of private charges (‘querela’) as a condition to prosecute. More generally, the situation highlights how the patterns of normative harmonisation of European derivation implant nor- mative solutions in the different legal szstems, thus determining coordina- tion problems which are not anymore entrusted to the traditional interpre- tative activity of internal courts limited to sources ordered in a unitary hierarchy, but which develop in the multi-level articulation of the current legal systems.

AB - Despite its relatively recent origins in the Italian jurisdiction (its introduction dating back to 2002), corruption in the private sector has lately acquired a new face with legislative decree 2017/38, which – in order to uniform it to the European standard of criminalisation – expands its criminalising scope with regard to both the range of offenders and the anti- cipation of the unlawful behaviour. The passage from the original formula- tion, limited to the corporate environment, to the current extension to all private entities, responds to the need for strengthening the action to contrast corruption, which keeps presenting such a pervasive character in the Italian reality to require a new commitment in the matter. The gradual diffusion of corporate criminal liability had already recalled the attention on such instru- ment with regard to corruption in the private sector, and such innovation had characterised a first significant amendment to the regulation (l. n. 190/ 2012). Besides, the original configuration of the offence expressed a logic of financial protection in respect of corporate assets which condition the entire structure of the unlawful conduct, whose influence makes it resistant to the modifications brought by the recent reform, which follow a different outline of the offence as regards both the harm and the relative technique of inter- vention. Particularly problematic is the connection between the relevance attributed also to the offer of undue advantages (and instigation to the unlawful conduct) and the maintaining of private charges (‘querela’) as a condition to prosecute. More generally, the situation highlights how the patterns of normative harmonisation of European derivation implant nor- mative solutions in the different legal szstems, thus determining coordina- tion problems which are not anymore entrusted to the traditional interpre- tative activity of internal courts limited to sources ordered in a unitary hierarchy, but which develop in the multi-level articulation of the current legal systems.

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