Associazioni criminali e società commerciali: la “sovrapposizione” tra enti tra problemi di struttura e di accertamento

The paper analyzes the relationship between criminal organisations and business corporations with the aim of assessing its impact on the Italian legal system. After investigating the causes that led to the emergence of this relationship between entities – defined through the concept of coexistence between organizational structures – the forms that this coexistence can take are reviewed through a casuistic approach. In an attempt to propose a categorization that adheres to data of experience, the distinction between “apparent coexistence” and “actual coexistence” between criminal organisations and business corporations is enunciated. The paper also focuses on the “positivization” of this distinction and on its correspondence to another partition already elaborated, that between the “confiscatory” and “recuperative” paradigm, which describes the different response of the legal system to the lawful entity found to have ties with a criminal organization. Highlighting the necessary relationship between the two forms of coexistence and the two different types of the legal system reaction – which leads to the assertion that the apparent coexistence implies the application of the confiscatory paradigm, while the actual coexistence only and exclusively the application of the recuperative paradigm – the usefulness profiles of this categorical approach are analyzed in relation to some issues of no small importance, such as the assessment of conspiracy, the application of the so-called death penalty of the entity (Articles 16 and 24 ter, Legislative Decree no. 231/2001), and the difference between “mafia enterprise” and “enterprise with mafia participations”. © 2022 Pisa University Press. All rights reserved.