DE FACTO OFFICE-HOLDER IN CORPORATIONS AND THE EXTENSION OF CRIMINAL LIABILITY

The paper addresses the concept and identifying criteria of the de facto office-holder in Italian corporate criminal law, analyzing the evolution of the formal, functional, and mixed theories developed to determine when the actual exercise of managerial functions may give rise to criminal liability. It then explores the relationship between the extension of subjective qualifications and the constitutional principle of legality. While Article 2639 of the Italian Civil Code specifically equates de jure and de facto office-holders in corporate offences, Italian courts have extended its application to insolvency offences despite the absence of an explicit statutory provision. The paper argues that this judicial approach, although aimed at ensuring effective protection against corporate misconduct, risks conflicting with the prohibition of analogia in malam partem and the constitutional guarantees of legality. It also examines the recent reform proposal, which sought to specially regulate de facto office-holders in insolvency offences, arguing that legislative intervention would represent a reasonable solution to reconcile effective enforcement with the principle of legality in Criminal law.