BUSINESS CRIMINAL LAW

BUSINESS CRIMINAL LAW

Antonino Gullo

Instructional goals

The course aims at illustrating the general profiles of the criminal liability of individuals and entities in the field of economic crime and the main offences of the business criminal law, with particular regard to corporate crime, market abuse and bankruptcy, also through the analysis of practical cases.

Intended learning outcomes

Knowledge and understanding: the student - through course attendance and the workshop, (in the form of case-law analysis and mock trial) – will gain full knowledge of the so called ‘general part’ of business criminal law, as well as the main types of corporate offences, market abuse and bankruptcy. The student will also learn to interpret such provisions in the light of the concepts related to the so called ‘general part’ of the Italian criminal law. The acquisition of such knowledge will be ascertained during the oral exam at the end of the course. Applying knowledge and understanding: The student, by learning the theory and the appropriate legal method, will be able to interpret the main offences of the different areas of business criminal law subject of the course in the light of the concepts related to the so called ‘general part’ of business criminal law, as well as to give a correct legal qualification to concrete cases. This knowledge will be tested during workshops. At the end of the course, an oral exam will take place. Making judgements: The student, by making use of the proper study and research methods learned during the course, will be able to collect data and materials to analyse the relevant criminal offences as well as scholars’ approaches related to corporate criminal law, financial market criminal law and bankruptcy criminal law. The student, therefore, will gain - also through participation in the workshops - the ability to evaluate such data and materials independently and to formulate his or her own critical judgement on the application of the fundamental concepts of criminal law to the types of crimes covered by the course. The student will be also able to identify concrete solutions to the legal issues at stake. Communicative skills: at the end of the course the student will be able to use the legal and technical vocabulary of business criminal law, addressing the legal issues at hand with terminological accuracy. Through the various training activities that will take place during the course, the student will be able to put these communication skills into practice, thus gaining advanced rhetorical skills the ability to adapt the terms used to the context and to the interlocutor in the specific case. Learning skills: the knowledge gained during the course will allow the student to independently understand and interpret the regulatory changes, new case law and scholars’ approaches related to the provisions of the different areas of business criminal law under study. In addition, through participation in the workshops and, in particular, in the mock trial, the student will be introduced to the typical dynamics of the criminal trial, developing attitudes useful also in view of his future entry into the professional career.

Course Contents

General part: the study of the notion of economic crime, the general characteristics of business criminal law, the criminal liability of natural persons and entities in the economic field. Special part: corporate crimes, insider trading and market manipulation offences, bankruptcy also in the light of the new code of business crisis and insolvency.

Reference Books

Alessandri, Alberto and Sergio Seminara. Diritto penale commerciale. Vol 1., I principi generali. Torino: G. Giappichelli, 2018: https://tinyurl.com/49fzutnn Seminara, Sergio. Diritto penale commerciale. Vol. 2., I reati societari. Torino: G. Giappichelli, 2021: https://tinyurl.com/nrafkr94 Seminara, Sergio. Diritto penale commerciale. Vol. 3., Il diritto penale del mercato mobiliare. Torino: G. Giappichelli, 2022: https://tinyurl.com/nrafkr94 Vol. 4., Reati nelle procedure concorsuali. Torino: G. Giappichelli, 2023: https://tinyurl.com/mt99yxv6 Additional learning materials uploaded on the course page of Luiss Learn platform.

Teaching Methods

Teaching with slides; case-law group analysis and discussion; workshops; podcasts; mock trials; testimonies.

Assessment Method

The final exam consists of an oral interview and the student shall demonstrate that he/she has achieved the expected learning outcomes, firstly with regard to the necessary knowledge of the offences included in the course programme. The student shall also demonstrate, in the interpretation and application of the single criminal provisions, the knowledge of notions and fundamental concepts of the ‘general part’ of business criminal law. The student shall be able to use an appropriate legal vocabulary and to give a correct legal qualification to concrete cases. The student is also expected to prove that he/she is able to independently analyse relevant legislation and case law, as to develop an autonomous ability to study the subject. The grade will be awarded in thirtieths and the following evaluation criteria will be taken into account: - knowledge and understanding of the fundamental concepts of the ‘general part’ of business criminal law and of the offences included in the course programme, ability to apply to these offences the fundamental concepts of the ‘general part’ of business criminal law and to give a correct legal qualification to concrete cases (70 %); appropriate use of the technical and legal vocabulary, ability to independently evaluate and analyse relevant sources, activities carried out during the course (30%). With reference to the latter evaluation criterion, the participation in the workshops and other course activities mentioned above will be taken into account. Learning gaps concerning one or more notions or offences will lead to an insufficient evaluation, even in presence of a basic knowledge of the matter.

Thesis assignment criteria

Interest and attitude manifested for the subject, good result at the oral exam, attendance of the criminal law major.

Week 1

Session 1 on campus: INTRODUCTION. Presentation of the course and introduction to the study of business criminal law. Topic 1.1. The notion of economic crime. Topic 1.2. The contents of the criminal law of economic crime. General characteristics of commercial criminal law. Topic 1.3. The evolution of the sanctioning structures. The function of the penalty. Confiscation. Session 2 online: Testimony: Fundamentals of business organization Chap. I, §§ 1 to 7.4 of the manual Alessandri – Seminara, Diritto penale commerciale, vol. I (see Reference Books)

Week 2

Session 1 on campus: CRIMINAL LIABILITY OF THE INDIVIDUAL Topic 2.1. The notion of crime in commercial criminal law. The relevant constitutional principles. Topic 2.2. The extension of subjective qualifications. The de facto administrator. Alternative systems of corporate governance. Session 2 online: Topic 2.3. The identification of the persons responsible. Delegation of duties. Chapter II, §§ 1 to 10 of the manual Alessandri – Seminara, Diritto penale commerciale, vol. I (see Reference Books)

Week 3

Session 1 on campus: Topic 1.1. The responsibility of the company's governing bodies. The imputation criteria and security positions. Topic. 1.2. The liability of directors Session 2 online: Analysis and discussion on a case regarding the de facto director Chapter II, §§ 11 to 12 of the manual Alessandri – Seminara, Diritto penale commerciale, vol. I (see Reference Books)

Week 4

Session 1 on campus: Topic 1.1. The liability of statutory auditors Session 2 online: Analysis and discussion on a case regarding the liability of non-executive directors Chapter II, §§ 11 to 12 of the manual Alessandri – Seminara, Diritto penale commerciale, vol. I (see Reference Books)

Week 5

Session 1 on campus: Testimony: Content and basic principles in accounting Session 2 online: Analysis and discussion on a case regarding the liability of statutory auditors Learning materials uploaded on the course page of Luiss Learn platform.

Week 6

Session 1 on campus: CORPORATE CRIMES Introduction and general notions. PROTECTION OF CORPORATE INFORMATION Topic 1.1. General framework and historical-normative evolution. Topic 1.2. The new types of false accounting (‘False comunicazioni sociali’). Topic 1.3. The object of falsehoods. The criminal relevance of the false evaluations. Session 2 online: Podcast on Articles 2621 bis and ter of the Italian Civil Code and self-assessment test Chap. I, §§ 1 to 8, and Chap. II, §§ 1 to 9 of the Manual Seminara, Diritto penale commerciale, vol. II (see Reference Books)

Week 7

Session 1 on campus: CRIMES OF INFIDELITY Topic 2.1. The crime of ‘infedeltà patrimoniale’. Session 2 online: Podcast on the failure to disclose a conflict of interest and self-assessment test. Chap. IV, §§ 1 to 2.1., of the manual Seminara, Diritto penale commerciale, vol. II (see Reference Books)

Week 8

Session 1 on campus: Topic 1.1. Private corruption. THE PROTECTION OF CONTROL AND SURVEILLANCE ACTIVITIES Topic 2.1. The impediment of control. Topic 2.1. Obstruction to the functions of the supervisory authority. Session 2 online: Podcast on the obstruction to the functions of the supervisory authority and self-assessment test. Chap. IV, §§ 3 to 3.3. and Chap. VI, §§ 1 to 2.3., of the manual Seminara, Diritto penale commerciale, vol. II (see Reference Books).

Week 9

Session 1 on campus: BANKRUPTCY OFFENCES Introduction and general notions Topic 1.1. Bankruptcy proceedings and criminal law. Topic 1.2. The new code of business crisis and insolvency. Topic 1.3. The qualification of the declaratory judgment of bankruptcy. Session 2 online: Testimony: From bankruptcy law to business crisis law Chap. I, §§ 1 to 5 and Chap. II, § 6, of the manual Seminara, Diritto penale commerciale, vol. IV (see Reference Books).

Week 10

Session 1 on campus: (following) BANKRUPTCY CRIMINAL LAW Topic 1.4. Fraudulent bankruptcy of assets. Topic 1.5. Documentary bankruptcy. Topic 1.6. Preferred bankruptcy. Topic 1.7. Simple bankruptcy. Topic 1.8. Bankruptcy committed within corporations (the so called ‘bancarotta impropria’). Session 2 online: Podcast on the exemptions from bankruptcy and self-assessment test. Chap. II, §§ 1 to 9, Chap. III, § 1, Chap. IV, §§ 1 to 7, Chap. V, §1, Chap. VI, §§ 1 to 2, Chap. VII, §§ 1 to 8, Chap. VIII, §§ 1 to 2, of the manual Seminara, Diritto penale commerciale, vol. IV (see Reference Books).

Week 11

Session 1 on campus: THE CRIMINAL LAW OF THE SECURITIES MARKET Introduction and general notions Topic 1.1. The crime of insider trading. Session 2 online: (following) Topic 1.2. The crime of market manipulation. Chapter III, §§ 1 to 7 of the manual Seminara, Diritto penale commerciale, vol. III (see Reference Books).

Week 12

Session 1 on campus: (following) THE CRIMINAL LAW OF THE SECURITIES MARKET Topic 1.3. Double track sanctions and ne bis in idem principle. Topic 1.4. Consob's role in market abuse. Chapter III, §§ 8 to 10 and 12 of the manual Seminara, Diritto penale commerciale, vol. III (see Reference Books). Sessione 2 on campus: Workshop: mock trial.