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Although the art. 27 of the Constitutional text decrees that the criminal liability is individual, with the Legislative Decree 231/2001, the legislative body has introduced for the first time among the national rules the administrative / penal imputability of the legal entities for the offenses committed by individuals who act in the executive sphere of the same.
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According to this rule, they can be prosecuted for the accomplishment of some offenses, both the person who committed them, and the body in which this person exercises their profession, provided that these offenses have been committed to the benefit and in any case to advantage of the organ itself.
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The body will be considered not responsible for the unlawful committed by its employee only in the hypothesis in which in the corporate body have been organized planning and administration systems suitable to prevent illicit.
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The provisions of this decree are applicable to bodies with legal subjectivity, to companies and companies, even if they do not have legal subjectivity; they are not valid for the State, local public bodies, other non-economic public bodies, and bodies with positions of constitutional importance.
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The sanctions imposed are pecuniary, interdiction and expropriation: interdiction sanctions may include the temporary interruption of the company s work and, in the most unpleasant cases, the ban on carrying out the work.
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The offenses for which the criminal imputability of the organs is presumed are announced in detail and, substantially, are those directed to the Public Administration bodies: the illegitimate acceptance of public concessions, the embezzlement and corruption, fraud and the computer fraud against the State or a public body, in addition to some corporate malpractice including false accounting, false representation and fraudulent social information, and wrongdoing such as monetary falsification and credit cards.
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In order for the illegal actuation to be carried out by the individuals operating at the top of the company to be implemented, such circumstances must occur: 1.
the organization must have planned, before the criminal offense, organizational and administrative systems suitable to avert the offenses that are part of the type of those that took place; 2.
the body has set up a body (independent in decision-making and verification power) with the duty to monitor the progress and compliance of the systems and to take care of their improvement; 3.
The individual has committed the offense by dishonestly transgressing the organizational and administrative systems; 4.
there was no missing or incomplete surveillance by the supervisory body. In the hypothesis in which these offenses are performed by individuals with the function of employees, on the contrary, the organ is not imputable if the latter do not respect the burdens of address and surveillance and the organ itself has used and put in place , before the crime was committed, a system of planning, administration and surveillance, suitable to prevent the offenses belonging to the categories of those that took place.