JUS - 2019 - 2

The essay deals with the problems inherent in the gamblings that the Italian state organizes more and more widely. This is in some ways an emblematic case of how contemporary capitalism tends to escape any ethically based control. Significant is the attitude of the Italian law that admits these forms of gambling and at the same time considers the gambling addiction a disease deserving of the widest protection by the national health service. The author takes into consideration some possible directives for the protection of the player based on an evolutionary reading of the rules of the civil code dedicated to these contracts. In particular, it examines a possible extension of the concept of incapacity and possible invalidity of those gaming contracts in which the form does not contain the information required by the law on the risks of loss and on gambling addiction.

A characteristic of the institutional works of the third century A.D. is, above all, the presence particularly inside their proemes of a series of varied precepts based on ethicalphilosophical principles, more or less re-elaborated by the authors in a more typically technicaljuridical perspective: on the basis both of this fact and the exegesis of the fragments concerned, one could think that in the conception of the Severian jurists the law school was the privileged place for the general (technical but also ethical) training of the individual, even more and in a better way than the schools of the ancient philosophical tradition that were spread all over the empire during that time.

Pope Pius XI’s brilliant intuition about the creation, in 1929, of a tiny State with a symbolic territory only in order to protect the sovereignty and the freedom of the Holy See and to preserve it from meddling and influences by secular systems, reveals itself to be still topical to the present day. In fact, after many years of optimal service, this atypical State has known a period of extremely intense legislative work since the early 2000s. However, certain aspects of it - namely the connections established between Vatican City law and Canon law - have been exploited in a perverse way on the international level in order to legitimize a forceful influence on the interna corporis of the Church. This short circuit could eventually cause serious injuries not only to the libertas Ecclesiae, but - even before that - also to the religious freedom and to the autonomy of religious confession. It is therefore necessary to strongly reiterate the distinction between the Catholic Church, the Holy See and the Vatican City State, highlighting in a clear way the mere instrumentality of the latter. Otherwise, a paradoxical ‘transfiguration’ of the Vatican City State may occur: from stronghold of the independence of the Holy See and Canon law against intrusions from the outside, to ‘Trojan Horse’ of recurring and pugnacious jurisdictionalist aggressions.

In the framework of Augustine’s philosophy, Oresme develops his own political theory deeply influenced by cultural changes within the University of Paris, where the Aristotelianism is undergoing a deep evolution. The thought of Marsilius of Padua and of Italian jurists (Neapolitan School, Oldradus de Ponte, Baldus de Ubaldi, Bartolus of Saxoferrato) justifies the claims of independence and the formation of the national state. The glosses on the Aristotelian translations give Oresme the opportunity to examine the domestic policy in a context of crisis and civil hostilities as well as a basis for the development of public law.

The new Italian Code of Crisis and Insolvency (CCII), through the provision of warning instruments, aligns the Italian legal system with the EU Directive 2019/1023, anticipating its entry into force. The choice of the Italian legislator, consistently with the objectives of the Directive aimed at forecasting a framework for the preventive restructuring of the crisis, focuses on the tools of “preparation” and “early management of the crisis”, drawing new duties and corporate functions appointed to build governance of the company capable of anticipating the crisis through the construction of organizational structures suitable for the timely detection of the crisis or insolvency. At the center of the new regulatory framework there is a strengthening of the roles and functions of the audit committee which is no longer the sole recipient of a general duty of supervision over the correct administration of the company but is invested, together with the qualified public creditors , of the power to “force” the company in crisis to access to reorganization and restructuring procedures for the preservation of the going concern value or, of real insolvency, breaking away from the property that holds the control of the company and the administrators of their expression. The organization and planning of the crisis thus become ground of evaluation of the professional diligence of the administrators whose violation, due to the consequences that the obligation prevents, constitute in themselves serious management irregularities that can be relevant for both to report to the court pursuant to art. 2409 c.c. and the external alert to OCR in the context of the emergence of crisis signals. In this context, the petition of serious management irregularities could prove to be an inefficient tool also for the purposes of the discipline of the Crisis Code aimed at detecting early signs of the crisis. The relevance of serious management irregularities concerning the violation of the art. 2086 c.c. which omissive conducts relevant for reporting to the OCR seems to suggest that the regulatory system, as configured today, privileges, through the incentive of exemption from liability, devolution to the public administration of crisis management. In this sense the petition pursuant to art. 2409 of the Civil Code, in light of the fact that the OCRI can also activate a “bankruptcy” liquidation procedure by reporting to the PM pursuant to art. 22 CCII, could assume, in the new system, residual character when the serious irregularities are confined to
mere dynamics of conflict between minority shareholders and majority.