FUNZIONE PUNITIVA E DIRITTO CIVILE. PROBLEMA E SISTEMA

In July 2017, the Civil Court of Cassation, Joint Sections issued a judgment opening to the exequatur of punitive damages award rendered by foreign courts. However, the Supreme Court did not limit its attention to the profile of private international law but went so far as to state that «in the current legal system, […] the functions of deterrence and punishment are inherent in the system». This dictum prompted the present research, which has been carried out with reference to the civil law system as a whole (tort law, so-called “relational” liability, and appropriative conflicts of resources in proprietary contexts). The problematic survey and the consequent systematic analysis carried out show that the role of the punitive function in the civil law system is very limited. The traditional civil law institutions appear capable of protecting private interests, thus the lack of compelling reasons to reconfigure them in a punitive sense. The main research results show that: de lege lata, punishment in private law does not rise to a general category; and de lege ferenda, there is no ground to promote a greater scope for it. Nevertheless, they have also outlined the possibility that punitive function plays a heuristic role – modest but not trivial – which may operate both in the negative (i.e., excluding eccentric interpretative outcomes), and in the positive (i.e., posing the question of a possible systematic innovation).