Responsabilità da reato degli enti e agency problems. I limiti del d.lgs.vo n. 231 del 2001 e le prospettive di riforma

The Italian legislation on corporate liability is reminiscent of the prisoner’s dilemma.\r\nThe two major players, i.e. the State and the private enterprise, are willing\r\nto cooperate in order to fulfill their own purposes. Yet, in the absence of a credible\r\nagreement, they go separate ways. This paper analyzes the principles of corporate\r\nliability through the agency relationship, the information economy and the theory\r\nof incentives, and it puts forward some fundamental corrections to the current\r\nlegislation. The aim is to optimize the public-private partnership in corporate crime\r\nrisk management so as to achieve a more effective prevention of economic crimes\r\nand minimize the costs incurred into by private organizations. Hence, the legislator\r\nis called upon to design a “credible” regulation that can actually build a positive\r\nrelationship between the parties in order to align their goals and to foster the\r\nacceptance of certain core principles that can ensure a sharing of relevant information\r\nin the future.