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In our legal system, every transgression of interests that are protected by law is considered illegitimate damage. It is useful to remember that not all interests have juridical importance, the compensation of damages is prescribed only when the transgression of the interests of other subjects constitutes an "illegitimate damage" .
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Such damage is the necessary premise of an unlawful action, which at the same time is a fundamental requirement of the so-called non-contractual liability. Initially it was considered "illegitimate" only the transgression of universal rights and those relating to the person in the flesh. Subsequently, the infringement of credit rights was also considered illegitimate, such as the hypothesis of non-compliance.
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Today, "illegitimate damage" refers to any transgression of an asset protected by law, therefore also circumstances such as possession, disruption at a pre-contractual level, transgression of a property in conformity with the legislation .
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The term illicit refers to a human behavior that opposes the law, as it violates an obligation or a duty imposed by a legal rule, called primary, to which another rule, called secondary, associates a conviction [1 ].
Such unlawful conduct may be commissive, that is, an action, in the event that it violates an obligation or a negative (not to do), or omission (a lack) obligation, in the event that it violates an obligation or a positive bond (to do or to give).
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The clash between behavior and the so-called primary norm is called anti-juridical. The offense is an event of a juridical nature since a law of this kind unites, as a consequence, the production of a subjective juridical situation, the so-called responsibility, that is the duty to adapt to the foreseen punishment: it is therefore de facto illicit.
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In our today s legal system, in order to highlight responsibility, it is necessary that the intentionality of behavior be manifested, as an effect the illicit act more specifically as legal action and, consequently, we speak of illicit action. However, in our legislation there are also situations of objective responsibility, the consequences of which do not derive solely from the intentionality of the behavior: in this case, the offense is considered not as a legal action, but as a simple fact. Finally, the term illicit fact, in reference to the Italian legislation, and that of illegal action, in reference to German and Swiss legislation, are also used with a narrower meaning, or to refer to a particular type of offense, that civil law at an extra-contractual level.
The crime of fraudulent bankruptcy at the company level has undergone changes both because the transformation of some characteristic aspects of the corporate crimes mentioned above has taken place, and because some types of crime have been eliminated, and finally due to the presumption of a fact, the bankruptcy precisely, considered in a causal relationship with the mandate of the established actions.
The aforementioned term (1), however, falls within the legal framework and is intended to specify the situations of fraudulent bankruptcy (Article 223, paragraph 1) and simple (Article 224, No. 1), implemented by the administrations (officials and liquidators), by executives and control institutions (the sole mayors) of companies that declare bankruptcy.
At the common level, the term specifies a sub-category of improper failure (2), ie the established failure, with respect to the active subject of the crime, by the fact of being implemented by people other than bankruptcy, the entrepreneur, with respect to the material effect, from the fact of referring to the assets and accounting owned by parties other than the one who committed the crime (3).
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The same term, then, also refers to the circumstances of fraudulent and simple failure, established by the articles. 223, paragraph 2, and 224, n. 2. The art. 223, paragraph 2, n. 2, and the art. 224, n. 2, also punish, due to fraudulent and simple disruption, the administrative and corporate bodies mentioned above that, due to fraud or fraudulent transactions or breach of the obligations established by law, have determined, in the second circumstance also worsened, corporate bankruptcy.