Ratio e sistema dell'illecito (para-)penale dell'ente modificato

Abstract This paper analyses the criminal liability of legal entities subjected to modifications according to d. lgs. 231/2001. Such liability stays even after the transformation; on the contrary, in case of merger, it is subjected to shifting from the original entity to that resulting 204 ARTICOLI Riv. trim. dir. pen. econ. 1-2/2015 from the operation. In the division, to the purposes of bans and disqualifications, law expressly requires the transfer of the branch of the enterprise in which crime has been committed. Valuing such formula and catching its systematic relevance we can hypothesise, also de jure condito, that the responsibility of the entity resulting from the division is subordinated to the finding of a relevant continuity with the entity in which the presupposed crime was committed. The continuity might be deduced from the preservation of the managers and from the unchanged distribution of the powers of management and/or control of the entity; it remains to be established whether such a requirement can be postulated also in case of transformation and merger. Finally the paper covers the problem of establishing whether after relevant modifications of the entity its liability, however conceived, presupposes further requirements, capable of consecrating what could be defined as a blame upheld by factors of effective “personalisation” of the charge. MASSIMILIANO MASUCCI 205