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Article. 223, paragraph 2, n. 1, punishes, however, for fraudulent collapse and with the punishments provided for by art. 216, paragraph 1, always declaring bankruptcy of the company, corporate administrative bodies that have committed illegal business activities as required by the provisions of the Civil Code.
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The same provision has been object of study of our legal system by virtue of the now accepted modification of corporate crimes, provided for by art. 11, Delegated Law of 3 October 2001, n. 366 (in short, Law No. 366/2001) (4) and implemented by Legislative Decree 11 April 2002, n. 61, in force since last April 16, 2002 (hereafter, Legislative Decree No. 61/2002) (5); (Article 11, letter g) of law no. 366/2001 asked to "reshape the rules on bankruptcy crimes that cite corporate crimes in court, decreeing that the punishment is implemented only to the additional conduct of corporate crimes that have determined or contributed to determine the bankruptcy".
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The assessment of the changes made to the aforementioned offense, which from now on will be called a failure by the corporate crime, presupposes various analyzes of the law in force, especially with regard to the jurisprudential definition of the same.
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Corporate bankruptcy in current legislation. Article. 223, paragraph 2, n. 1, in the current law, established that the directors officials, managers, auditors and liquidators of companies that had declared bankruptcy were provided for the punishment expected by paragraph 1 of Article. 216 (6) in case they had committed «each of the actions established by art. 2621, 2622, 2623, 2628, 2630, paragraph 1, of the Civil Code ".
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Instead, what was expressed in jurisprudence (7) and in doctrine (8) did not allow the analyzed law to introduce a circumstance of burdening of the corporate crimes established in it and proposed to consider the independent nature of the offense, made valid by the withholding tax. implementation also to the same actions of failure of the circumstance of which to the art. 219, paragraph 2, n. 1 (9).
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The most sustained legal subject considered the form of presumed risk (10): in particular, it considered the offense of protected legal persons to be presumed and, consequently, the interest of creditors in safeguarding social capital.
Furthermore, it was argued that, due to the configuration of the corporate crime offense, the existence of a causal link between the action provided for by the provisions of the Civil Code and the bankruptcy of the company was not necessary (11).
It was logical that, due to the failure of company crime, activities and above all untrue social data were attributed over time, if necessary also linked to subjects other than those that, with subsequent illicit activities, had determined the economic and financial crisis of the company (12).
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The risk of blaming behaviors whose consequent damage was very questionable, if not explicitly non-existent, could not be the one and only fundamental requirement of the analyzed case.
Also the other cases of failure, proper and improper, to the exclusion of those regulated by art. 223, paragraph 2, n. 2, and 224, n. 2, considered as event crimes, outlined by bankruptcy, not circumscribing a criminal risk context over time (13), authorizing and authorizing the feasibility of activities implemented even in times that preceded the birth of a real danger of insolvency.
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The corporate criminal provisions established by the legal system in force in the bankruptcy area. It is useful to consider and analyze such regulations in force in the bankruptcy law in order to make it easier, right now that in the criminal law relating to the company the regulation established by articles 2621 - 2640 of the civil code, the comparison with the current rules laid down by the art. 4, Legislative Decree no. 61/2002.
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This is certainly not the right time or place to deal with the corporate criminal law provisions specified in the bankruptcy regulation (14); on the other hand, the aforementioned regulations can be quickly identified, along with those that have been deleted from the list of bankruptcy regulations, in order to better highlight the actions (15), the application of which in the event of corporate instability determined the possibility of failure analyzed, and the protected legal objects.