BUSINESS ORGANIZATION AND CRIMINAL PROCEDURE B

General Module

Course Sheet

Course code:

0386LB

Academic Year of enrolment:

2023

Year of supply:

2023/2024

Type of Course:

Characterising

Degree:

Course of 2nd Cycle Degree in LEGAL SCIENCES FOR INTERNATIONALISATION AND BUSINESS INNOVATION

Disciplinary Sector:

Criminal Procedural Law

Is part of:

BUSINESS ORGANIZATION AND CRIMINAL PROCEDURE

Location:

PESCARA

Credits:

Programme Year:

Professor and Collaborators:

TRAPELLA FRANCESCO

Cycle:

Second semester

Hours of classroom activity:

Individual study hours:

102

Prerequisites:

Basic knowledge of Criminal Law (notion of crime, principle of criminal legality, constitutive elements of the crime) and Commercial Law (in particular as regards the concept of enterprise).
Students who come from degree courses other than those of classes L-14 and LMG/01 will recover their previous knowledge by studying the supplementary materials indicated by the teacher or by attending specific meetings organized by the Chair.

Objectives

KNOWLEDGE - At the end of the course the student will have full knowledge of the tools for ascertaining the criminal and parapenal responsibilities connected to the exercise of the entrepreneurial activity and weighing on the institution and/or on the entrepreneur.
ACQUIRED SKILLS - The student will be able to use the acquired knowledge for the correct organization of the entrepreneurial activity; in particular, they will be able to grasp the risk, for the entity and for the community, deriving from a socially dangerous activity and will be able to adopt the most appropriate strategies to prevent criminal drift. The student will be able to place the knowledge acquired in an interdisciplinary perspective.

Contents

The course intends to offer an overview of the tools for ascertaining the liability (criminal or paracriminal) connected to business activity and on the protections that the Law recognizes for the institution and the entrepreneur, including through access to remedial tools . More specifically, the subject of analysis will be: 1) the provisions of Legislative Decree 231/2001 on the liability of entities deriving from the offense of top managers; 2) the discipline of the Law 283/1962 (recently innovated by the Cartabia reform), of the Legislative Decree 758/1994 and of the Legislative Decree 152/2006 as regards the extinction of contraventions related to the business activity for remedial conduct; 3) the set of criminal implications connected to organizational obligations in terms of safety in the workplace.

Extended Syllabus

Why a course on corporate responsibility: (many) questions and (few) certainties in the systems of criminal and parapenal liability related to business activity (2 hours).
Introduction to Legislative Decree 231/2001, its objectives and contents. A step back: the gestation of Legislative Decree 231/2001. Supranational precedents (European and North American) (2 hours).
Nature of the entity's liability: the debate on its qualification (criminal or administrative); crime of top management and offense of the entity: the notion of "fact" in Legislative Decree 231/2001; interest and advantage in the system of legislative decree 231/2001 (2 hours).
The MOG: concept and function; the guidelines of Confindustria; the fraudulent circumvention of the model; the MOG post crimen patratum (2 hours).
The OdV: concept and function; composition of the supervisory body; the SB in small entities; independence and autonomy of the SB; relations between the SB and RPC; whistleblowing (2 hours).
The entity's sanctions: pecuniary and disqualification; the commissioning of the entity; tools of a remedial nature: art. 12 and 17 of Legislative Decree 231/2001 (2 hours).
Structure of criminal proceedings for natural persons and for the entity: similarities and differences; the “simultaneus processus”; static part profiles and references to the code legislation on subjects, deeds and evidence (2 hours).
Precautionary matters: serious indications of guilt and precautionary requirements; the particular connotation of the precautionary measures for the institution according to the restorative justice objectives of Legislative Decree 231/2001; precautionary proceedings; real cautions (4 hours).
Preliminary investigations: entry of the crime report, guarantee information, referral to the principles and rules of the code of criminal procedure, archiving and contestation (2 hours).
Special proceedings: agreements on the sentence, abbreviated procedure, monitory proceedings; the particular question of the entity put to the test (2 hours).
Structure of the hearing phase of the process of the entities (in particular, the opening statement of the hearing as a barrier for some choices of interest to the entity, the evidentiary procedure and the sentence); outline of appeals (2 hours).
The system of extinguishing fines for remedial conduct: the labor law discipline of Legislative Decree 758/1994 (2 hours).
Contiguous institutes: the T.U. environmental and the 283/1962 as modified by the Cartabia reform (2 hours).
Compatibility of extinguishing mechanisms for remedial conduct with the constitutional principles of criminal investigation, in particular with the obligation of criminal prosecution and with the presumption of not guilty; similarities and differences with the system of legislative decree 231/2001 (2 hours).
The regulation of safety at work: criminal implications; crime prevention tools, in particular the so-called MOG81 (2 hours).
Procedural simulation: under the constant guidance of the teacher, the students, divided into three working groups (judge, prosecution, defense) will face each other on a case of criminal liability of the entrepreneur and related "231" liability of the entity (16 hours) .
It is evident that the program for attending students covers only a part of the topics assigned to non-attending students and intends to focus on this in detail.

Recommended Bibliography

Attending students will prepare the exam on the notes and materials distribued by the teacher.
Non attending students will study:
- D. PIVA (a cura di), La responsabilità degli enti ex d.lgs. n. 231/2001 tra diritto e processo, Giappichelli, Torino, 2021, pages 37-102; 142-179; 214-247; 267-307; 351-377; 498-526; 533-541; 549-593; 760-800; 807-984.
- C. TRABACE, Le procedure definitorie delle contravvenzioni antinfortunistiche e il rito de societate: due modelli all’insegna del favor reparationis, in Diritto della sicurezza sul lavoro, 2022, 1, pages 66-93;
- F. TRAPELLA, Il procedimento. Un’analisi di sistema, in F. GIUNCHEDI ed., Estinzione dei reati alimentari, Giappichelli, Torino, 2024, pages 81-120
- T. VITARELLI, “Obblighi” apicali e “oneri” metaindividuali in materia di sicurezza sul lavoro: intersezioni e differenze, in Archivio penale, 2023, 1, pages 1-21.
Erasmus students, regardless of attendance, will prepare the exam on: A. BERNASCONI, A. PRESUTTI, Manuale della responsabilità degli enti, Giuffré, Milano, 2018, pages 3-16; 41-52; 65-190.
They will then agree on supplementary readings, comparing the structure studied in the manual with reference to Italian system and the legislation in force in their respective countries of origin as to: 1) nature of the entities liability; 2) tools for the prevention of the offense connected to organizational charges within the entity.
Students coming from courses non included in Degree Class L-14 or LMG/01 will integrate their respective programs with the study of R. BARTOLI, Introduzione al diritto penale tra violenza e costituzionalismo, Giappichelli, Turin, 2022 (120 pages) or, alternatively, by attending the supplementary lessons organized by the teacher for the recovery of the basics of criminal law useful for the course. Students required to make this integration, if not attending, can limit themselves to prepare the exam on the D. PIVA and F. TRAPELLA texts.

Teaching Methods

In the total 48 hours of the course, the teacher will alternate frontal lessons with meetings based on the learning by doing method, with the greater involvement of the students, engaged in the solution of practical cases and in the simulation of prevention activities from the offense and procedural assessment.
In addition, it is also possible for students to participate in conferences and in-depth seminars held by experts and teachers, including foreign ones.

Evaluation methods

Verification of learning:

ATTENDING STUDENTS – Intermediate written exam: short-answer questions (max. 10 lines), valid for 30% of the final grade; presentation of the guidelines useful for the preparation of a OMM, valid for 15% of the final vote; trial simulation, valid for 15% of the final mark; oral exam on the remaining part of the program, valid for 40% of the final grade.
The final mark will be assigned out of twenty-eighth and can be increased up to 3 points (and it will reach the maximum score of 30 with honors) based on the quality of active participation during the lessons.
NON ATTENDING STUDENTS - Three oral questions on the contents of the programme, unless the exam is interrupted earlier due to serious unpreparedness of the student.
ERASMUS STUDENTS (INDEPENDENT OF ATTENDANCE) – Written test on the recommended textbook: fifteen multiple-choice questions, valid for 50% of the final grade; written paper with oral discussion on the comparison between the Italian system and that of the countries of origin (valid for 50% of final grade).
STUDENTS FROM DEGREE COURSES OTHER THAN L-14 OR LMG/01 - The final grade (both for attending and non-attending students) will take into account the acquisition of basic knowledge according to the methods indicated in the syllabus. For this reason, it is possible to increase the final score up to 3 points in case of established mastery of the general categories of criminal matters; the vote can be reduced without limits in the opposite hypothesis.
The teacher will not collect attendance signatures; it will be the student who presents himself as attending or not during the exam, taking into account the diversity of the programs adopted.

Contacts/More Information

The teacher is always available at francesco.trapella@unich.it.
The teacher is available to supervise students for the master's degree thesis. The thesis will be elaborated starting from a question agreed with the student and the answer will be set through the study of literature and jurisprudence; the student's experience gained during internships and professional seminars will be particularly valued.

Università degli Studi
"G. d'Annunzio"

Chieti - Pescara

Aree