RISK MANAGEMENT, CORPORATE CRIMINAL LIABILITY AND CORPORATE GOVERNANCE


Scientific Responsible: prof. Oreste Cagnasso

The Department of Management of the University of Turin launched in 2015 an interdisciplinary research project on «Risk Management» with the aim to develop a scientific study on a topic that – thanks also to the recent innovation of the Italian anti-bribery discipline – assumes strong importance and central relevance in the corporate governance field.

In this context, one of the panel will deal with the connection between risk-management, company criminal liability and corporate governance and the call for papers is open to Professors and Scholars who desire to contribute to the study – including from a comparative perspective – of such above matters, that are still problematic.

Since 2001, the Italian legal system has in fact implemented a mechanism of direct criminal liability of the company for all those offenses attributable to its corporate officers (see Legislative Decree no. 231/2001); the only exemption to such a system is the adoption of an adequate organizational structure in relation to the prevention of offences (i.e. Model 231) that has to be supervised by a special body (i.e. ODV) .

At the present date, the number of the relevant offenses is more than one hundred and fifty, with a central role, in particular, of crimes against the public administration and of financial and markets crimes.

Moreover, since 2012, the adoption of an adequate organizational structure is one of the criteria for issuing the legality rating of the companies (Reg. AGCM 14 November 2012), that is an element that represents an important index to obtain public financing and to have access to bank loans (Decree of Italian Ministry of Economy and Finance, no. 57 of 20 February 2014), particularly for those companies that operate for the Public Administration.

Despite the growing importance of this issue, the discipline of corporate liability for crimes committed by its inside apical officers is a topic still largely unexplored, especially with reference to some crucial aspects, that can represent some subject areas for future papers:

  • Societas delinquere potest? The juridical qualification of corporate liability between subjectivization and objectivization of criminal law.
  • Personality of punishment and rehabilitation function: still current principles?
  • The catalogue of the legal entities that can be criminally liable: still a work in progress?
  • The evolution of the regulated sectors: banks and listed companies (Legislative Decree 197/2004).
  • The system of sanctions: prevention measures, disqualification penalties, fines and accessory measures.
  • The reward mechanisms: the «231 organizational model» and the ODV; the Compliance Program. The internal corporate functions and the risk of crime. Adequacy of the organizational structure and internal control.
  • Adequate organizational structure and 231 Model: interferences and consonances.
  • ODV: composition, functions, powers and liability.