Corporate Criminal Liability in the Perspective of Rehabilitation: The Bewilderment of Walking without a Map

Corporate criminal liability enforcement represents the worldwide response to multiple international solicitations that aimed at repressing the crime committed by the legal entities. In the Italian legal system, the issuance of Legislative Decree n° 231 of 8 June 2001 has introduced a specific discipline of corporation criminal liability, that incentivizes – and does not oblige – the adoption of organizational structures aimed at preventing the risk of committing certain crimes. The liability of the corporation requires the existence of four prerequisites: the commission of one of the predicate offences; the qualified relationship of the offender with the corporation; the circumstance that the offence was committed «in the interest» or «to the advantage» of the corporation; finally the failure to adopt a model to prevent the commission of the offences, under the supervising of an ad hoc Supervisory board. The adoption and correct implementation of the MOG 231 entails several forms of exemption from liability for committing crimes, according to the so-called Carrot and Stick Approach. Despite frequent worldwide regulatory measures, the notion of corporate criminal liability continues to be questioned. So, in the Italian legal system the quantitative increase of offences has not always been accompanied by a qualitative improvement in Decree n° 231. Therefore, it would be advisable a systematic revision of the discipline, rethinking the heavy sanctioning system, in order to reaffirm the need for the diffusion of a real “231 culture”.