Italian Law on Business Crime

by Di Amato, Astolfo

• ISBN13: 9789041198327
• ISBN10: 9041198326
• Format: Hardcover
• Copyright: 2001-04-01
• Publisher: Kluwer Law Intl

Summary

Business crime with a corresponding recourse to criminal law and procedure to redress socially unacceptable business conduct continues to rise in many Western countries. In Italy this trend has taken the form of a vast and chaotic collection of special laws, many of them proposed and passed ad hoc in response to specific crimes, and without reference To The Italian Criminal Code or any other systematic body of law. As a result, business activity in Italy is particularly fraught with risk and uncertainty. Italian Law on Business Crime is the first book to sort out and organize this mass of legislative material into a coherent and useful body of law. it offers the business person clear assurance that his or her conduct in the course of entrepreneurial or other business activity in Italy will not fall foul of the law. it also provides guidance in identifying and combating the illegal conduct of others that can arise in such areas as taxation and bankruptcy proceedings. Beginning with a detailed background in the elements of Italian criminal law and business crime in general, Professor Di Amato goes on to analyze the particular crimes that can arise in corporate activity, bankruptcy proceedings, matters of taxation and customs duties, transfer of goods, compliance with environmental standards, competition and other market issues, finance, banking, insurance, securities, financial services, and use of negotiable instruments. The book concludes with a concise and valuable description of Italian criminal procedure.

Table of Contents

Preface	xv
Abbreviations	xvi
Introduction	1	(1)
Notion of Business Crimes	1	(1)
Freedom of Enterprise and Criminal Law	2	(1)
Basic Elements of Criminal Law	3	(18)
Criminal Law Sources: Principle of Legality	3	(1)
Corollaries of the Principle of Legality: Prohibition of Ex Post Facto Legislation	4	(1)
Principle of Sufficient Determination of the ``Model Fact Situation'' and Prohibition of Reasoning by Analogy	5	(1)
Compulsory Character of Criminal Law	6	(1)
Principle of Territoriality	6	(1)
Crime	7	(1)
Offender	7	(1)
Protected Interest and Object of the Crime	8	(1)
Victim of the Crime and Person Injured by the Crime	8	(1)
Elements of the Crime: Material Element	9	(4)
Conduct	9	(1)
Event	10	(1)
Chain of Causation	11	(1)
Attempt	12	(1)
Mental Element	13	(2)
Intent	13	(1)
Various Forms of Intent	13	(1)
Negligence	14	(1)
Intent and Negligence in Delitti and Contravvenzioni	14	(1)
Criminal Punishments	15	(3)
Kinds of Punishments: Main Punishments	15	(1)
Substitutive and Ancillary Punishments	16	(1)
Civil Effects of the Crime	17	(1)
Causes of Extinction of Crimes and Punishments	18	(1)
Legal Excuses	18	(2)
Legal Excuses Affecting the Material Element (or ``Justifications'')	18	(1)
Legal Excuses Affecting the Mental Element (or ``Excuses'')	19	(1)
Participation in the Crime	20	(1)
Business Crimes: General Issues	21	(16)
Preliminary Remarks	21	(1)
Offenders	21	(3)
De Facto Director	22	(1)
Criminal Responsibility of Agents and Employees	23	(1)
Criminal Responsibility of Professionals	23	(1)
Corporate Criminal Liability: Societas Delinquere Non Potest	24	(1)
Criminal Liability within Organized Entities	25	(2)
Internal Organizational Regulations	25	(1)
Delegation of Functions: Limits and Effects	25	(1)
Requirements of Delegation: Crimes of Action and Crimes of Omission	26	(1)
Civil and Criminal Liability of Members of Collective Organs of Corporations	27	(3)
Criminal Responsibility for Omitted Control	28	(1)
Mental Element	29	(1)
Criminal Responsibility within Groups of Corporations	30	(1)
Entrepreneurial Activity and Organized Crime	31	(1)
Mistake of Law	31	(2)
Ancillary Punishments	33	(1)
Criminal Violations and Civil Validity of Contracts	34	(3)
Corporate Crimes	37	(40)
Overview	37	(2)
Protected Interest	37	(1)
Sphere of Application of Rules on Corporate Crimes	38	(1)
Aggravating Circumstance of Damage of Relevant Seriousness	39	(1)
False Corporate Statements	39	(7)
Material Element	40	(1)
False Corporate Acts	41	(1)
Conduct	42	(1)
Misrepresentation	43	(1)
Concealment of Facts Concerning the Corporate Economic Conditions	44	(1)
Law and Case Law Principles	44	(1)
Mental Element	45	(1)
Other Profiles	46	(1)
Manipulation of Corporate Securities	46	(1)
Material and Mental Elements	46	(1)
Criminal Protection of the Corporate Capital	47	(13)
Unlawful Profit Sharing	47	(1)
Material Element	48	(1)
Mental Element and Aggravating Circumstance	49	(1)
Unlawful Distribution of Accounts on Dividends	49	(1)
Material Element	49	(1)
Mental Element and Aggravating Circumstance	50	(1)
Other Provisions Protecting the Corporate Capital	50	(1)
Unlawful Reduction of Capital, Merger or Spin-off (art. 2623, no. 1, of the IC)	50	(1)
Unlawful Restitution of Capital Contributions (art. 2623, no. 2, of the IC)	51	(1)
Unlawful Loans or Guarantees (art. 2624 of the IC)	52	(1)
Material and Mental Elements	52	(1)
Inflated Evaluation of Contributions in Kind	53	(1)
Offenders and Material Element	54	(1)
Mental Element	55	(1)
Violation of Duties of Corporate Directors (art. 2630, paragraph 1, of the IC)	55	(1)
Unlawful Issue of Shares (art. 2630, paragraph 1, no. 1)	55	(1)
Purchase of its Own Shares and other Violations (art. 2630, paragraph 1, no. 2)	56	(1)
Failure to Offer Non-exercised Pre-emptive Rights (art. 2630, paragraph 1, no. 4)	57	(1)
Violation of Duties of Corporate Directors (art. 2630, paragraph 2, of the IC)	58	(1)
Unlawful Subscription of its Own Shares or of Shares of the Controlling Corporation	59	(1)
Violations of Duties of Liquidators	59	(1)
Fraudulent Conversion (Misappropriation)	60	(1)
Unfaithfulness and Abuses of Powers	60	(6)
Spread of Corporate Confidential Information	61	(1)
Material and Mental Elements	61	(1)
Other Profiles	62	(1)
Obstruction of Control	62	(1)
Unlawful Influence in the Shareholders' Meeting	63	(1)
Omitted Calling of the Shareholders' Meeting	64	(1)
Modification of the Corporate Object	64	(1)
Conflict of Interests	65	(1)
Issue of Irregular Shares and Bonds	66	(1)
Violation of Duties of Internal Auditors	66	(1)
Criminal Provisions on Judicial Receivers and Government Commissioners	67	(1)
Criminal Provisions Regarding Listed Corporations	68	(3)
Unlawful Purchase of Shares	68	(1)
Omitted Sale of Shares	69	(1)
False Statements to the CONSOB and the Stock Market	69	(2)
Obstruction of the Functions of the CONSOB	71	(1)
Criminal Provisions Regarding Audit Firms	71	(6)
Area of Application	71	(1)
False Statements of Directors of Audit Firms	71	(1)
Material and Mental Elements	72	(1)
Use or Spread of Confidential Information by Members of Audit Firms	73	(1)
Loans and Guarantees Granted by Audited Corporations	73	(1)
Unlawful Compensation to Directors and Employees of Audit Firms	74	(1)
Aggrevating Circumstance of Damage of Relevant Seriousness	75	(1)
Communication of the Conviction to the CONSOB	75	(2)
Bankruptcy Crimes	77	(16)
Preliminary Remarks	77	(2)
Role of the Adjudication in Bankruptcy	77	(2)
Bankruptcy Crimes	79	(7)
Patrimonial Fraudulent Bankruptcy	79	(1)
Material Element	79	(1)
Specific Conduct	80	(1)
Real Impoverishment	80	(1)
Fictitious Impoverishment	81	(1)
Mental Element	82	(1)
Fraudulent Bankruptcy on Documents	82	(1)
Material Element	82	(1)
Mental Element	83	(1)
Preferential Fraudulent Bankruptcy	83	(1)
Patrimonial Simple Bankruptcy	84	(1)
Simple Bankruptcy of Non-Compliance with Composition or Arrangement with Creditors	85	(1)
Simple Bankruptcy on Documents	85	(1)
Unlawful Obtaining of Financing	86	(1)
Ancillary Punishments	86	(1)
Aggrevating or Mitigating Circumstances	87	(1)
Indication of Non-Existent Creditors and other Violations	88	(1)
Improper Bankruptcy: Crimes of Directors, Chief Executives, Auditors and Liquidators	88	(2)
Other Bankruptcy Crimes	90	(3)
Tax Crimes, Customs Duties Crimes and Violations on the Transfer of Goods	93	(34)
Preliminary Remarks	93	(1)
Criminal Proceeding and Tax Litigation	93	(1)
Mistake Concerning Tax Law	94	(1)
Criminal Profiles of Tax Rulings	95	(1)
Tax Provisions	95	(1)
Criminal Profiles	95	(1)
Ancillary Punishments	96	(1)
Period of Limitation for the Prosecution of Tax Crimes	97	(1)
Mitigating Circumstances of Payment of Taxes	98	(1)
Failure To File the Annual Income Tax and Vat Returns	98	(2)
Material Element	99	(1)
Mental Element	100	(1)
Incorrect Tax Return	100	(2)
Material Element	100	(2)
Mental Element and Attempt	102	(1)
Fraudulent Tax Return by Using Invoices or other Documents for Non-Existent Transactions	102	(3)
Material Element	103	(1)
Mental Element	104	(1)
Mitigating Circumstance, Attempt and Participation in the Crime	104	(1)
Relationship with the Crime of False Corporate Statements	105	(1)
Fraudulent Tax Return by other Fraudulent Means	105	(3)
Material Element	106	(1)
Mental Element	107	(1)
Attempt and Relationship with the Crime of False Corporate Statements	107	(1)
Criminal Profiles of Tax Avoidance	108	(7)
Operations of Reorganization: Article 37-bis of the ITAC	108	(1)
Transfer Pricing: Article 76, Paragraph 5, of the ITC	109	(1)
Anti-Tax Havens Legislation Concerning Enterprises: Article 76, Paragraphs 7-bis and 7-ter, of the ITC	110	(2)
Transfer of Residence Abroad of Italian Individuals, and Connected Anti-Tax Havens Legislation	112	(1)
Criminal Relevance of Sham Transactions	113	(2)
Criminal Relevance of the Permanent Establishment	115	(1)
Issue of Invoices or Other Documents for Non-Existent Transactions	115	(2)
Material Element	116	(1)
Mental Element	117	(1)
Mitigating Circumstance and Participation in the Crime	117	(1)
Concealment or Destruction of Account Books	117	(2)
Material Element	117	(1)
Mental Element	118	(1)
Fraudulent Subtraction to the Payment of Taxes	119	(1)
Disturbance and Incitement to Obstruct the Collection of Taxes	119	(1)
Other Tax Crimes	120	(1)
Relevant Criminal Provisions on the Transfer of Currency	120	(1)
Customs Duties Crimes	120	(7)
Preliminary Remarks	120	(1)
Contraband in the Transfer of Goods through Land Borders	121	(1)
Contraband in the Maritime Transfer of Goods	122	(1)
Other Crimes of Contraband	123	(1)
Contraband for Undue Utilization of Goods Imported with Tax Benefits	123	(1)
Contraband in the Export of Goods Entitled to the Refund of Customs Duties	124	(1)
Contraband in the Temporary Importation or Export	124	(1)
Other Cases of Contraband	125	(1)
Unlawful Export of High Technology Products	125	(2)
Environmental Crimes	127	(14)
Preliminary Remarks	127	(1)
Typical Environmental Crimes	127	(5)
Overview	127	(1)
Provisions against Radioactive Pollution and against Pollution from Asbestos	128	(1)
Provisions against Pollution of Waters	129	(1)
Provisions on Solid Wastes	129	(1)
Specific Offences	130	(1)
Provisions against Pollution of the Atmosphere	131	(1)
Noise Pollution	132	(1)
Pollution and the ICC	132	(1)
Building Crimes	132	(9)
Overview	132	(1)
Building Violations	132	(1)
Non-Criminal Building Activities	133	(1)
Criminal Provisions	134	(1)
Non-Compliance in Building Works	135	(1)
Absence of Building Permission and Total Divergence	136	(1)
Illegal Parcelling	137	(1)
Tied-up Real Property	137	(1)
Criminal Profiles of Amnesty for Illegal Works	137	(1)
Criminal Protection of Artistic and Historical Heritage	138	(1)
Constructions in Seismic Zones and Cement Constructions	138	(3)
Criminal Protection of the Non-Financial Market	141	(40)
General Profiles	141	(4)
Protection of the Market from Racketeering Organizations	142	(2)
Fictitious Ownership	144	(1)
Access to the Market	144	(1)
Criminal Protection Against Unfair Competition	145	(5)
Manipulation (Rigging the Market)	146	(1)
Speculation on Goods	147	(1)
Boycott and Sabotage	147	(1)
Nuisance to the Freedom of Industry and Trade	148	(1)
Unfair Competition by Threat or Duress	149	(1)
Defamation	149	(1)
Comparaggio and other Violations	150	(1)
Criminal Protection of Signs of Distinction	150	(8)
Forgery of Signs of Distinction of Industrial Products	151	(1)
Material Element	151	(1)
Object of the Crime	152	(1)
Mental Element	153	(1)
Trade of Forged Products	153	(1)
Frauds Against Domestic Industries	154	(1)
Sale of Industrial Products with Signs Able To Deceive	155	(1)
Material Element	155	(1)
Forms of Conduct	156	(1)
Other Profiles of the Material Element and Mental Element	157	(1)
Special Provisions	158	(1)
Criminal Protection of Intellectual Property	158	(9)
Intellectual Property	158	(1)
Forgery and Alteration of Patents	159	(1)
Infringement of Patent: Breach of the Monopoly of Profit	159	(1)
Disclosure of Industrial Secrets	160	(1)
Misappropriation of Industrial Secrets	161	(1)
Infringement of Copyrights	162	(1)
Abusive Reproduction, Sale and Rental of Phonographic, Movie and Audio-Visual Works, and Other Violations	163	(2)
Unlawful Rental and other Violations	165	(1)
Unlawful Duplication of Computer Programs	165	(1)
Unlawful Code Conversion of Audio-Visual Transmissions at Limited Access	166	(1)
Mitigating Circumstance	166	(1)
Administrative Sanctions for Unlawful Utilization of Works Protected by Copyright	166	(1)
Criminal Protection of Consumers	167	(7)
Preliminary Remarks	167	(1)
Breach and Fraud in Contracts of Public Supply	167	(2)
Crimes on Public Procurements and Competitive Bidding	169	(1)
Trade Fraud	169	(1)
Material and Mental Elements	170	(1)
Fraud in the Sale of Foodstuff	171	(1)
Placement into the Market of Dangerous Products	172	(1)
Criminal Homicide and Personal Injury	172	(1)
Unlawful Advertising	173	(1)
Price Regulation and Special Provisions on Trade Fraud	174	(1)
Computer Crimes	174	(3)
Infringement of Data Processing Privacy	175	(1)
Internet Crimes	176	(1)
Privacy Protection	177	(1)
Crimes Against the Administration	178	(3)
Preliminary Remarks	178	(1)
Specific Offences	179	(2)
Criminal Protection of the Financial Market	181	(34)
General Profiles	181	(6)
Preliminary Remarks	181	(1)
Protection of the Financial Market from the Organized Crime	182	(1)
Money Laundering and Connected Crimes	183	(1)
Usury	184	(1)
Unlawful Obtaining and Utilization of Public or EC Financing	185	(1)
Unlawful Financing of Political Parties	186	(1)
Banking Crimes	187	(7)
Banking Provisions and Banking Secrecy	187	(1)
Illegal Performance of Banking Functions	187	(2)
Unlawful Use of the Bank Denomination	189	(1)
False Statements and Obstruction of the Functions of Control	189	(1)
Loans to Bank Managers	190	(1)
False Statements to Banks	191	(1)
Internal Banking Forgery	192	(1)
Banking Manipulation	193	(1)
Forgery in Requests of Authorization and in Communications of Participation	193	(1)
Insurance Crimes	194	(2)
Rules on Relevant Participation	194	(1)
Insurance on the Risk of Kidnapping	195	(1)
Insurance Fraud	195	(1)
Criminal Provisions on the Financial Activity	196	(2)
Illegal and Incorrect Performance of the Financial Activity	196	(2)
Criminal Provisions on the Market of Financial Instruments	198	(18)
Preliminary Remarks	198	(1)
Unauthorized Performance of Investment Services	198	(1)
Material and Mental Elements	199	(2)
Unfaithful Managing of Investments	201	(1)
Intermixture of Assets	202	(1)
False Statements on the Participation in the Capital of Investment Firms, OICRs and Centralized Management Corporations	202	(1)
False Certificates Concerning Financial Instruments in Centralized Management	203	(1)
Protection of the Activity of Control of Stock Market Regulators	203	(2)
Insider Trading	205	(1)
Material Element	205	(3)
Mental Element and Exemptions	208	(1)
Manipulation of Financial Instruments	208	(1)
Common Provisions on Insider Trading and Manipulation of Financial Instruments	209	(7)
Criminal Provisions on Negotiable Instruments	210	(1)
Preliminary Remarks	210	(1)
Forgery of Negotiable Instruments	210	(1)
Material Forgery and Use of Forged Negotiable Instruments	211	(1)
Abuse of Blank Document	211	(1)
Assignment of Non-Existent Credits	212	(1)
Criminal Provisions on Checks	213	(1)
Unlawful Use of Credit Cards	213	(2)
Basic Elements of Criminal Procedure	215	(6)
Jurisdiction	215	(1)
Constitutional Principles	216	(1)
Prosecution	216	(1)
Coercive Measures	217	(1)
Options for Defendant	218	(1)
Trial	219	(1)
Attacks on Judgments and Enforcement of Sentences	219	(2)
Index	221