¿FATTISPECIE¿ E ¿TIPO¿ NEI FENOMENI COMPLESSI. COSTRUZIONE DEL TIPO CRIMINOSO E DISVALORE DI CONTESTO TRA DIRITTO VIVENTE, DIRITTO VIGENTE E PROSPETTIVE DE IURE CONDENDO
This research work fits in the particular field of legal knowledge called “Science of Legislation”, limited to “criminal laws”. In this field, in particular, one of the fundamental issues that involves the legislative drafting is the provision of an “abstract case” capable of expressing a homogeneous “criminal type”. With this expression, the doctrine intends to refer to the ability of the criminal law to describe the “typical” fact by bringing out the offence’s core disvalue, to clearly distinguish the actions that are expressive of the offence from those that are not. In particular, this work focuses on the interactions between the “abstract case” described by the law and the “criminal type” of complex phenomena. With this expression we mean to refer to criminal conduct or criminal “situations” whose description in terms of an “abstract case” is not sufficient to construct the “criminal type”, which emerges only after comparison with the context in which the concrete fact was committed. In relation to such phenomena, the context plays a decisive role not only in terms of identification, i.e. in order to relate the concrete case to the abstract case, but as it allows to recognise the offence’s core disvalue. The dissertation is divided into three chapters, followed by concluding reflections. The first chapter deals with the topic of the construction of the “abstract case” and the “criminal type”, considering the philosophical framework - emphasising the role played by the philosophy of language - as well as in the constitutional framework, and then it focuses on the various techniques of legislative drafting for the criminal law. Finally, we introduce the problem of the construction of the “criminal type” of complex phenomena. The second chapter, starting from selected “case studies”, intends to highlight, by an inductive method, the inadequacy of the traditional model of “abstract” and “static” criminal legislation for describing the “criminal type” of complex phenomena. In this kind of situations, the offence’s core disvalue emerges only ex post, through the context: this leads to the case law’s elaboration of indicators to guide the interpretation. The trend is the “co-managed” elaboration of the “criminal type” between the legislator and the case law, which leads to the risk of shaping the “criminal type” in an unpredictable manner, on the basis of the evidence available in the trial case by case, in clear violation of the principle of legality. The third chapter examines the new technique used by the legislator to incriminate labour exploitation. In this matter, considering that the concept of exploitation is not easy to define, the legislator has elaborated some “contextual indexes”, functional to express ex ante the “criminal type”. Starting from this unprecedented legislative technique, the ultimate aim is to prospect the potential expansion, the limits and legitimacy, also with an eye to the comparative law, of a legislative drafting technique that provides contextual indicators as tools for the judge to correctly identify the offence’s core disvalue, in order to avoid the “delegation” to the case law of the legislative function of identifying the criminal offence, a distortion that stands in stark contrast with the fundamental principles of our criminal system.
scienza della legislazione, fattispecie penale, tipo criminoso, tecniche di redazione della fattispecie, Settore IUS/17 - Diritto Penale
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