Vertice o sottoposto? Brevi note sul problema della qualificazione dell'R.S.P.P. nel prisma dei differenti modelli di colpevolezza dell'ente

Manca, Giovanni

2023-01-01

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Abstract

The unitary interpretation of the requirement of guilt of the legal person in the liability pursuant to d.lgs. n. 231/2001 as “fault in organization” does not adequately illustrate the relevant differences in the conditions for excluding the punishment for adopting the prevention models which distinguish the case of crime committed bythe top manager from the one committed by the subordinate, and which therefore make the qualification as topor subordinate of the natural person perpetrator of the crime crucial, and fraught with concrete consequences for the entity. In this context, the issue of qualification — as top or subordinate of the Head of the Prevention andProtection Service (R.S.P.P.) or, otherwise, of the legal person based on cases of accident at work — becameparticularly important for the events of the liability. For the first time, the judgement under review explicitlyresolves the question, excluding the nature of the top management even in the case of delegation from theemployer, and qualifying the R.S.P.P. as his mere subordinate, thus paving the way for a model of wider and fuller exemption of the legal person judged from sanctions pursuant to d.lgs. n. 231/2001 in case of effective adoptionof prevention models.