OLTRE IL MODELLO MERCANTILE? VELLEITA` E INETTITUDINE DELL’ENNESIMA RIFORMA DELLA CORRUZIONE PRIVATA

Abstract

The article deals with the most significant and problematic aspects of the umpteenth reform of private corruption, introduced with the legislative decree n. 38/2017. There are three main issues at stake. First, the instruction, in the text of art. 2635 of the civil code (c.c.), of the (formally) unilateral conducts of offering and soliciting as forms of consummated private corruption. Such a choice contrasts with the model, traditionally adopted by the Italian legislator, of criminalising corrupting conducts as bilateral behaviours and risks to introduce elements of unreasonableness in the overall regulation of the phenomenon. Related to this, the second aspect considered here is the introduction of new art. 2635-bis in the civil code, which criminalises as ‘(active and passive) incitation to private corruption’ the conducts of corrupting offer and solicitation which are not followed by the acceptation of the recipient. Here, we widely discuss the relationship between this article and the previous one and we suggest that a systematic interpretation allows concluding that only within the scope of art. 2635- bis ‘offering’ and ‘soliciting’ should be intended as unilateral conducts. The third and final aspect concerns the reconstruction of the objective elements of the offences of private corruption: the new article 2635 c.c. does not require anymore any ‘harm to the company’, which appears to shift the focus of the criminalisation beyond the financial orbit and towards the loyalty model. This point is also developed in the light of a reconsideration of the relationships between private corruption and financial infidelity (art. 2634 c.c.) and culminates in the thesis that the objective element of private corruption, in its current formulation, can be individuated in the ‘good functioning of the corporation’; this allows to draw, finally, some reflections on the possible repercussions on the protection of competition.