Cass. Civ. Sec. United Sent., 01.26.2011, No 1768
Conduct of the process and reasons for the decision
heard the PM in person of the Advocate General Dr. IANNELLI Dominic, who has applied for the dismissal of the main and incidental.
1. - The story of the case.
In 1981, Mr. DS dies in childbirth and the gynecologist (which, as we shall see, is no longer present in this process) and the midwife (LC) that are followed during labor are subject to criminal prosecution for the crime of manslaughter.
The first criminal court sentencing the only doctor for lack of evidence and shall carry the midwife.
The court of criminal appeals considers, however, that both defendants have contributed to cause the fact: the doctor and the midwife at 60% as much as 40%. In Here, however, the court found the facts forming the basis of the charges and given to both defendants extenuating circumstances, the effect of these states required the offense. Providing, also, on questions of civil parties (among them there is also today's event) has condemned the defendants to pay damages to the extent indicated above.
the 6th Criminal Chamber of the Court, the sentence no 5665, 1992, confirmed the sentence on appeal, except for costs and compensation for damage to the midwife, given that he / she had not been issued condemnation, not generic, in the first instance. Since
This is the outcome of criminal proceedings, the relatives of the victim, after settlement of the dispute with the gynecologist, agreed before the civil judge midwife LC for damages.
The Court finds the defendant responsible for Latin America to the same extent already established by the criminal court (40%). The Court of Appeal in Rome, however, with the ruling to the Supreme Court considers appeal hour non-binding ruling of the criminal courts and includes the contributory negligence of the LC at 10%. The appeal of M., the DM and the DS is played in nine grounds. Responds with the response of LC, which offers cross-appeal by two reasons. The main appeal
complaint, the ruling, inter alia for violating the criminal court that you claim have been formed due to the dismissal of the appeal against the decision of the accused criminal appeals, for violating Article. 652 Code of Civil Procedure, which, it says, would enshrine the principle of effectiveness also extrapenale Dismissal for statute of limitations, when it was delivered following a concrete assessment of the facts attributed to the accused.
2. - The referral order at SU The 3rd Civil Chamber of the Court seised of the action, he saw a contrast in the case of legitimacy on the effects of res judicata in criminal proceedings civil damages, calling the documents to the first President for the possible assignment of the case sections together. In particular, we observe that in the referral:
(a) for a first orientation, the decision of the criminal court to prosecute, given the outcome of findings of fact, would be binding on the court calendar as the material existence the facts found by the judge (citing Cass about it. 14328/00, 810/95);
(b) for a second approach, however, the criminal sentence that declares the offense and faded-barred would have no effect binding in the subsequent civil action for damages (citing about Cass. 3084/97, 1319/96, 342/96, 10551/98).
The first president referred the case to the sections together.
Appeals must be met, pursuant to art. 335 cpc, as brought against the same sentence.
3. - The question and its roots.
The problem concerns the binding force of the criminal sentence in the trial of damages, assuming that the accused will be acquitted for a crime to settle the case.
old problems, which feeds into the root of the debate there has been somewhere between 18 and 19 ^ ^ century, including the theory that, in the name of the unity of the judicial function, said the prevalence of criminal jurisdiction over civil law and one which, however, claimed autonomy over the other.
The first, considering that the criminal court would function according to government and civil justice, based on the fact that when it prosecutes, the entire community along with the accusation that prosecutors and is part of the ideal criminal trial, whose final ruling is effective erga omnes. He considered, therefore, socially scandalous that the ruling contradicted with the civil penalty (which, moreover, T ascertaining the truth is more accurate than the calendar), where, above all, the principle of unity of the judicial function means that, once espressasi, it can not be duplicated.
The second looked primarily to the criminal sentence acquittal, noting that it is merely verifying the lack of evidence of the crime, it is unreasonable to assume that the PM represents all citizens in respect of their civil actions and criminal court but can not must necessarily influence the decision calendar. Since then the debate between those who believe that the criminal sentence, however, prevail over civil law and who, by contrast, supports the independence of the judgments has never faded away, so much so that even today the contrast is the examination of SU.
The principle of unity of jurisdiction and the subsequent corollary of the prevalence of criminal sentence on the civil came to assert the opposite view, as to be translated into law as early as the Code of Criminal Procedure of Savoy in 1859, only to be translated into codes of Criminal Procedure of 1865 Italians, 1913 and 1930, without being put into question, neither in doctrine nor in law. It can be said, in short, who had also lost the memory of the historical genesis of such a goal. Only with the coming into force of the republican constitution lit some authors doubt about the compatibility of the principle of unity of jurisdiction with the new basic law. One of the most illustrious processualism thought that the principle should be mitigated, as the art. 27 Code of Criminal Procedure of 1930 established the binding force of the criminal sentence only for compensatory damages in civil proceedings as regards the determination of the fact, illegality, and the responsibility of the convicted, all three of these investigations may be contained in just one sentence or dismissals for lack of eligibility (mental infirmity or minor age), so that every other sentence (and especially not to prosecute can not be attributed to causes other than) has no binding effect in the civil action for damages. Efforts interpretativi che rimasero sterili nel perdurante vigore di un sistema processuale inquisitorio, che della prevalenza della sentenza penale su quella civile faceva il suo stesso senso.
4. – L’avvento del codice di procedura penale del 1989.
Il quadro cambia radicalmente con l’entrata in vigore del nuovo codice di procedura penale, il quale elimina la cd. pregiudiziale penale (già sancita dall’art. 3 del codice del 1930), cancella l’efficacia extrapenale della sentenza di proscioglimento nei giudizi civili diversi da quelli di risarcimento (prevista dall’art. 28 del codice del 1930) e, con l’art. 75, introduce la pressochè totale autonomia tra azione civile e penale. Tuttavia, literal terms of the new provisions of art. 651 (effectiveness of the criminal court in condemnation proceedings in civil or administrative damage) and Art. 652 (effectiveness of the criminal sentence of acquittal in the trial of civil or administrative damage) end up tracing the text of articles. 27 and 25 of the old code, meaning that those judgments in the force of res judicata is explicitly attributed solely to an irrevocable penal sentence of acquittal made after a hearing, the finding that the crime does not exist or that the defendant did not has committed or that the act was complied with when carrying out a duty or exercising a legitimate right. No reference is made to acquittals for amnesty, for prescription or other termination of the offense. This, even after the entry into force of the new code, has reignited the debate about the effectiveness of mandatory sentences, though, this time, both prevailed (especially in doctrine) supports the thesis that the inefficacy of the sentence extrapenale acquittal, although based on a finding of actual facts.
5. - The contrast of jurisprudence.
interpreting the provisions of Articles. 651 and 652 of the new Code of Criminal Procedure, a first orientation (Cass. No 9798/96, No 1319/96) has denied any binding effect to the acquittals, as already seen in the case of a declaration of termination of the offense for amnesty. This ruling in fact, even if issued after the hearing can not be equated to the verdict of acquittal or that the ones that where the rules just mentioned give binding effect in the trial of civil damage: this is in accordance with the criteria targeted reduce the effectiveness of res judicata extrapenale contained in proxy-law No 16 February 1987 81 (art. 2, nos. 22-25, and 53), and because the new Code of Criminal Procedure Articles. 651-654, extrapenale effectiveness of the award, refer only to judgments hearing final conviction or acquittal, so that you can not equate these other types of decision, as the ruling not to proceed.
It is therefore concluded that in civil proceedings or administrative proceedings for refunds and damages against the defendant, the judge, after the acquittal of the accused under the amnesty, it must completely re-evaluate the fact, Noting that nothing in this has already been established in criminal, for the purposes of the declaration of amnesty or limitation (Cass. No 342/96, No 3084/97, No. 10551/98, No. 10122 / 00; No 3132/01, No 2297/04 (Rv. 569,935). Under this approach was considered, therefore, that the determination of Special tenuous nature of the damage caused by the crime, committed by a criminal court in order to apply a measure of amnesty, is "a rough estimate, with the result that it is not binding on the civil court, after hearing the action for damages, the determination of quantum debeatur "(Cass. No 5887/00), Consequently, the guidance under review, denying binding force to the decision of admissibility for extinction of the offense occurred in the force of the new code of criminal procedure has been applied not only in the cases acquittal for amnesty, but also the limitation of the crime (Cass. No 5945/00). So that, in proceedings brought against the defendant for compensation for the damage, the civil court, while taking into account all the evidence obtained in criminal proceedings, and be able to go through this process of argumentation of the criminal court and reach the same conclusions, however, must fully and independently revalue the fact ( in the same direction, cf. also Cass. No 16559/05).
These conclusions are not shared by other part of the law, which considers that the principle of autonomy of civil and criminal jurisdiction of courts is not to say dichotomy. In other words, the possibility of different judgments in civil and penal law, as permitted by art. 75 Code of Criminal Procedure and by the repeal of the criminal ruling under Article. 3 Code of Criminal Procedure of 1930, does not mean that the jurisdiction remains always one and only one, and is contrary to the logic of the unity of jurisdiction to impose two different judges to ascertain the same facts twice.
This approach acknowledges that the criminal sentence that says not having to carry the offense to be extinct for amnesty, on the assumption prevalent a particular mitigating factor, did not res judicata as to the commission of the crime, but this effect takes place only when civil court is satisfied that, under its powers of interpretation, be censured by the seat of legitimacy in the absence of legal and logical flaws incongruous reasons, the benefit of amnesty was granted on the basis of a review of prevalence formulated in the abstract, only with respect to the charge, or that the criminal court declared extinct on offense without considering the merits of notitia criminis (Cass. No 3002/94). A rather different conclusions
orientation test comes when the court actually considered the criminal facts forming the basis of changing the classification of the offense or the circumstances of the proceedings of comparison. It 'was, in fact, held that Article. 654 of the new Code of Criminal Procedure did not reproduce the old art. 28 Code of Criminal Procedure of 1930, and therefore the principles supported by case law with reference to this rule must be applied even after the entry into force of the new code of ritual. Therefore, "the sentence of acquittal hearing for prescription (...) can. Bearing on the civil proceedings initiated against the accused as to the existence of material facts by the judge specifically found" (Cass. No 13939/99).
conclusion justified by the fact that: art. 654 cpp, where binding attaches only to judgments of acquittal and not those of acquittal, must be interpreted according to its spirit and not according to his letter, the spirit of Article. 654 Code of Criminal Procedure is to establish a legal relationship of dependence between the criminal and civil investigation, that is not born from above, but the actual finding of historical facts found in their objectivity in this respect, the judgments of acquittal are not a species of the broader genus of acquittals, even in second place that could be necessary 'findings of facts, for example the evaluation of mitigating or changing the classification of the offense;
therefore, when the criminal court in order to determine the extinction by prescription of the offense, determines the existence of mitigating circumstances and compare with the aggravating circumstances, performs an actual proceedings, such as binding in civil proceedings like the one contained in acquittal.
hath been also added that this interpretation is not challenged by weather the enabling law (Law No. 81 of February 16, 1987), which says nothing about the effectiveness extrapenale of acquittal, and observes that ' review would lead to opposite effects irrational and unconstitutional, discriminating between "case where the trial that certain facts would result in a decision on formally binding in civil law and those in which the investigation would be destined to remain confined within the dynamics of criminal proceedings "(Cass. No 3937/98, No. 14328/00; No 810/95, No 6906/93 (Rv.
482867).
E’ per queste ragioni che è stato ritenuto vincolante, nel processo civile di opposizione ad ingiunzione fiscale, l’accertamento dei fatti materiali commessi dal debitore-opponente (l’importazione di beni in evasione del dazio), contenuto nella sentenza penale di proscioglimento per prescrizione del reato di evasione dei diritti doganali, pronunciata dal giudice penale previo accertamento della sussistenza di circostanze attenuanti, reputate equivalenti alle contestate aggravanti (Cass. n. 13939/99). E’ stato ritenuto vincolante, nel processo civile di opposizione ad ingiunzione fiscale, l’accertamento dei fatti materiali commessi dal debitore- opponente (l’evasione dell’imposta sugli olii minerali), contenuto nella sentenza penale di proscioglimento per prescrizione del reato di evasione della suddetta imposta, pronunciata dal giudice penale previo accertamento della sussistenza di circostanze attenuanti, reputate equivalenti alle contestate aggravanti Cass. n. 3937/98).
Di recente Cass. n. 3903/10 ha stabilito che il principio secondo cui, nel caso di sentenza di estinzione del reato per amnistia, il giudice civile, adito per il risarcimento del danno, conserva la piena facoltà di ricostruire il fatto e di accertare, ai fini dell’art. 2059 cod. civ., se in esso ricorrano gli elementi costitutivi del reato, incontra un limite quando nel giudizio penale sia stato necessario un accertamento di merito per l’applicazione of amnesty, as in the event that this exclusion is the consequence of aggravating or the opinion of comparing aggravating and mitigating circumstances.
6. - The previous sections of the United Civil and criminal penalties. These
ON are already intervened on the theme, though (mind) with a ruling (No. 12243/09) is not made in the settlement of conflict, but in an appeal of a ruling of the Superior Court of Public Waters . It should also warned that talks on the decision in the UP have pronounced the interpretation of Article. 654 Code of Criminal Procedure, namely the rule that governs the effectiveness of the criminal sentence in civil administrative and other than damage. However, the principles established are capable of being applied also with respect to judgments purely risarcitoli, given that both Articles. Cpp 651 and 652 (governing the effects of the criminal sentence of conviction or acquittal in the trial of civil damage), and Article. Cpp 654 (governing the effects of the sentence of acquittal in criminal proceedings other than civil damage), all refer to the "irrevocable penal sentence (of the conviction or acquittal) given on a trial."
The Board, as will be seen also as a result, will take up the following arguments and bring continuity to the address already expressed.
The case concerned the claim for damages brought by the government against persons accused of theft continued public water and then acquitted for amnesty occurred. To apply for amnesty, however, the criminal court had found in practice the existence of special dell'attenuante tenuous nature of the act:
so that was kind enough to ascertain whether that bind the court in relation to the finding of civil liability defendant, or whether it was possible compensation in the trial an independent fact-finding. ON the occasion
argued that the acquittal has no binding authority in civil proceedings, even when based on actual findings of fact material to the accused being prosecuted, because: Articles. 651-654 cpp attribute the force of res judicata to the only criminal sentence of conviction or acquittal, and this is not the decision of not having to make art. 529 cpp, and nothing points out that the acquittal is "homogeneous" with respect to the acquittal (for this statement, see Cass. 14328/00 mentioned in the previous paragraph), as inferred from the address book of the Book 7 title ^ ^ 3, Chapter 2 ^, First Section of the Code of Criminal Procedure, precisely because the legislature in art. 654 Code of Civil Procedure, expressly relied on the sun acquittals, and therefore the species rather than the gender
the argumentum a contrario is inferred from the fact that the previously existing art. 28 Code of Criminal Procedure expressly provided extrapenale the effectiveness of acquittal, instead of the CPP, the enabling law for the adoption of the Code of Criminal Procedure provided for in the guidelines extrapenale reducing the effectiveness of the court (L. 16 February 1987, No 81, Art. 2, nos. 22, 25 and 53). These findings, they observed the UP, not least in cases where the criminal court in order to achieve the delivery of prescription or extinction of the offense for amnesty, is satisfied that in fact the existence of aggravating or mitigating or has proceeded to compare them, and this for two reasons: because such a determination "has the character of mere resolutions, it is sufficient to regard a rough estimate, and therefore can not be effective extrapenale typical of the judge because if that were the possible to distinguish between acquittals based on findings in practice and acquittals based on abstract evaluations, the same pleading (the acquittal) would be to have different effects (binding in the first case, non-binding in the second case) according to content, in contrast to the traditional principle that the effects depend on the procedural rules governing it, not the content that it takes in practice. From this the conclusion that "the declaration states as a cause of extinction of the crime may have been preceded by thought-out and specific assessment of the lack of hypothetical immediate acquittal (...) is excluded judged on the effectiveness of any ruling of the sentence acquittal. " To the same conclusion reached by the criminal law, often called upon to care for a related problem: that of the existence of an interest in contesting in the hands of the plaintiff or defendant, in order to obtain a change in the formula acquittal. The issue in the past also a source of various contrasts, was recently resolved by the intervention of the United Sections criminal, with a decision (made, mind you, this forum is not a composition of a contrast, but because of an opinion concerning disciplinary responsibility of judges) from which also derive useful information regarding the issue under discussion today. In particular, Cass. No prosecution on 40049 29/05/2008 (dep. on 28/10/2008), asked to determine "whether the plaintiff has or has less reason to appeal to the Supreme Court against a ruling that the defendant has been acquitted from charges of defamation printed with the words "because the crime does not exist under Article. 51 cp ", in order to obtain the formula" because the offense is not, "gave a negative answer to the question, providing a detailed exegesis of Article. 652 cpp result is the following corollaries: the Code of Criminal Procedure of 1988 did detract from the principle of the unity of the judicial function, introducing the different principle of autonomy, equality and originality of the Courts, art. 652 Code of Criminal Procedure, in that still provides a limited obligation of the civil court than the criminal sentence, is so exceptional rule, can not be fettered or analog broad interpretation, the same provision assigns the effectiveness of constraint only the criminal sentence hearing of an acquittal, so that "it is (...) except the effectiveness of the admissibility of statements by both of those issued for reasons unlimited, before the trial (Articles 425 and 469 Criminal Procedure Code) as well as those of procedural nature (for lack of a condition of admissibility or extinction of the crime), issued at the conclusion of the trial (Articles 529 and 531 Criminal Procedure Code). " 7. - The doctrine in question, taking the right circumstances before brought to light (the loss of CDs. "Criminal ruling, the cancellation of the effectiveness of extrapenale acquittals in civil lawsuits for damages other than the introduction the almost total autonomy of civil action and criminal), the current doctrine processualism reached the same conclusion, noting: that the principle of unity of the judicial function is not a dogma can not be eliminated, but a review with an ideological ("the criminal justice function of government, the civil justice ") and legal (the justification of the inquisitorial system and the prevalence of criminal jurisdiction) that is passed, the Code of Criminal Procedure of 1988 has finally abandoned that principle, keeping only outstanding exceptions to it in articles. 651-654 cpp as a result, the current system of relations between civil and criminal jurisdiction is based on the principle of separation and equiordinazione, with the sun and limited exceptions provided for in Articles. 651-654 cpp, according to the logic of separationis favor.
8. - The solution to the conflict. Sections
United, as has been said, are intended to adhere to the principles set forth in the preceding two paragraphs, accepting the interpretation of legislation that the effectiveness of the bond is attributable solely to the criminal sentence hearing of acquittal. In fact, the thesis that supports the broad interpretation of Article. 652 cpp is erroneous as contrary to the letter and the spirit of the provision, in addition to the general principles and the will of the legislature. This, in brief, perpetuates the interpretation that was given to art. 25 of repealed Code, without regard to who has failed the assumption on which it was based, namely the principles of unity and the primacy of jurisdiction over civil penal sentence.
Even after repeated interventions by the Constitutional Court on Articles. 25, 27 and 28 Code of Criminal Procedure of 1930, the law of the Delegation for the adoption of the new Code of Criminal Procedure 16 February 1987, No Contained 81 guiding criteria (Article 2, nos. 22-25 and 53) aimed at reducing the effectiveness of extrapenale judged. The legislator in accordance with these criteria included a drastic reduction of the effects of the decision extrapenali Criminal, consistent, moreover, with the overall logic of the new code in connection with the relationship between penal and civil proceedings, which are no longer followed the principle, previously dominant in the inquisitorial system, the unity of the judicial function and therefore the priority and primacy of jurisdiction in criminal and his INTERFERENCE than other processes.
In the new case law, based on the adversarial principle, the former general principle has failed and instead applies the principle of equality and originality of the different categories of courts and the substantial autonomy and separation of judgments. This also follows from the fact that the new code Procedure has not been reproduced, the provision in art. 3, paragraph 2 of the Code be repealed (on the necessary suspension of civil litigation pending the outcome of criminal proceedings), nor several other provisions related to the same (piece of art. Cpp 24 et seq.) And, consequently, its reformulation to No work of the law 353, 1990, deleted all references to the cd. penalty ruling by the art. 295 cpc.
The legislature, therefore, with the procedure code of 1988 introduced the principle of different (almost) complete independence and separation between civil and penal proceedings, in the sense that, except for some special and limited cases of suspension of civil actions under art. Code of Criminal Procedure 75, paragraph 3, on the one hand, the civil trial should continue its course without being influenced by the criminal trial and, secondly, the civil court must conduct an independent investigation of the facts and law of civil liability in court.
Moreover, the "principle of mutual independence of the criminal and civil," which inspired the new procedure code, apply also in the same criminal trial, where, if an acquittal of the accused be appealed by the plaintiff may only occur a ruling of acquittal and the effects a criminal conviction in civil law.
This new general principle is also weakened by the recognition of value to the criminal court in foreclosure proceedings in other specific limited circumstances, namely in those governed by art. Cpp 651, with reference to the court of conviction and art. Cpp 652, with reference to the court's acquittal in civil and administrative damage, art. Cpp 653, with reference to disciplinary proceedings and art. Cpp 654, with reference to the court exculpatory or conviction in the "other" (other than those above) civil and administrative.
All these provisions are subject to the constitutional limit, repeatedly affirmed by Constitutional Court and endorsed by the Enabling Act, respect the right of defense and the contradictory and, being an exception to the principle of autonomy and separation of judgments, are subject to a restrictive interpretation and can not be applied because of analogy beyond the cases expressly provided for. More specifically, Article. 652 Code of Criminal Procedure, pursuant to a specific directive Delegate Law (L. 16 February 1987, No. 81, Art. 2, 23), ruled that the acquittal in the trial of damage produce effects when these conditions are met : a) that it is irrevocable penal sentence given on a trial (or further expedited if the party civile ha accettato il rito); b) che il danneggiato si sia costituito o sia stato posto in condizione di costituirsi parte civile e che comunque il danneggiato dal reato non abbia esercitato l’azione in sede civile a norma dell’art. 75 c.p.p., comma 2.
Ricorrendo questi due presupposti, l’art. 652 c.p.p., dispone poi che la sentenza penale irrevocabile di assoluzione ha efficacia di giudicato nel giudizio civile o amministrativo per le restituzioni o il risarcimento del danno promosso dal danneggiato (o nell’interesse dello stesso, come da precisazione introdotta dalla L. 27 marzo 2001, n. 97, art. 9 con riferimento alle azioni risarcitorie esercitate nei giudizi di responsabilità amministrativa davanti alla Corte dei accounts), "the finding that the crime does not exist or that the accused has not committed or that the act was done in fulfillment of a duty or exercising a legitimate right."
Article. 652 cpp, therefore, the acquittal was res judicata in the civil action for damages only in relation to these investigations. The sentence of acquittal hearing may not be given for other reasons such as lack psychological element, fault or negligence, or the existence of a ground for justification (real or putative) other than in art. 51 cp, or the existence a case of non-punishment or can not be attributed to the subject. But the legislature, with its discretionary choice, however, consistent with the new principle introduced, limited the effectiveness of the judge, civil or administrative proceedings of damage, only the elements relating all'insussistenza the fact, not to the same Committee, and the outcome is not unlawful for the existence of Article. 51 cp.
E 'therefore excluded the effect of the rulings of admissibility, both of those issued, also for reasons of substance, before the trial (Articles 425 and 469 Criminal Procedure Code) as well as those of a procedural nature (for lack of a requirement admissibility or extinction of the crime), issued at the conclusion of the trial (Articles 529 and 531 Criminal Procedure Code).
This limitation of the effects of res judicata arising from the text of art. 652 Code of Criminal Procedure, is, moreover, consistent with the intention of the legislature, as is clear from the drafting of the new code of ritual.
The report of the preliminary draft of the new code (in Gazz.
no. No 250 of October 24, 1988, suppl. Ord. 2) show that followed was "the line drawn in 1978" (in the project code drawn up based on the previous delegation of 1974) at the points where the new delegation was not different from the previous year, and in this vein, the legislator has included "the precise intento di limitare l’efficacia vincolante della sentenza penale irrevocabile pronunziata in esito a giudizio al solo accertamento del fatto materiale e della sua riferibilità all’imputato, così da escludere ogni efficacia vincolante per quanto riguarda l’accertamento della colpa” (pag. 141 della citata relazione). Si tratta del resto di disciplina del tutto coerente con il nuovo principio della reciproca indipendenza dell’azione penale e di quella civile cui si ispira il vigente codice di procedura penale.
L’art. 652 c.p.p., dunque, stabilisce che la sentenza di assoluzione è idonea a produrre gli effetti di giudicato ivi indicati non in relazione alla formula utilizzata, bensì solo in quanto to state in categorical terms, an effective and positive finding of fact about the absence or the inability to attribute it to the accused or about the fact that the act was done in fulfillment of a duty or exercising a legitimate right ( circumstances, those that exclude the illegality, not just criminal, the fact, and hence the injustice of the damage). The formula used by itself is therefore not decisive because, beyond it, the effect of res judicata is related to the existence of a real effective investigation of these hypotheses (on these concepts, cf. Above all the aforementioned Cass. penale S.U. n. 40049/08).
9. – Altre considerazioni e l’enunciazione del principio di diritto.
A corredo di quanto finora argomentato vanno aggiunte le seguenti considerazioni. Il giudizio civile di danno, soprattutto per l’impulso giurisprudenziale dell’ultimo decennio, ha concretamente assunto configurazione, carattere ed ambiti che ne hanno esaltato, appunto, la totale originarietà ed autonomia rispetto a quello penale. Come mero accenno alla vasta opera di rielaborazione, basti pensare al decisivo passo effettuato dalla fondamentale Cass. S.U. n. 500/99 nell’affermare definitivamente (in sintonia con le indicazioni da tempo inviate dalla dottrina) che la disposizione dell’art. 2043 c.c. non costituisce norma secondaria (di sanzione) rispetto a norme primarie (di divieto), ma racchiude in sè una clausola generale primaria, espressa dalla formula “danno ingiusto”, in virtù della quale è risarcibile il danno che presenta le caratteristiche dell’ingiustizia, in quanto lesivo di interessi ai quali l’ordinamento, prendendoli in considerazione sotto vari profili (esulanti dalle tematiche del risarcimento), attribuisce rilevanza.
Di qui la conseguenza che, avuto riguardo al carattere atipico del fatto illecito delineato dalla citata disposizione, non è possibile individuare in via preventiva gli interessi meritevoli di tutela ma spetta al giudice, attraverso un giudizio di comparisons between the conflicting interests, to determine whether and to what degree, sorting preparing compensation claims to the interest of the victim, or however it takes into account other perspectives, showing, thus, a need of protection.
A few years later it occurred to the total reorganization of non-pecuniary damage under Article. 2059 cc (especially for cash transactions. Nn. 8827 and 8828 in 2003 and then to Cass. SU No. 26972/08), based on the fundamental consideration that it, with reference to the constitutional precept of art. 2, must be understood as a broad category, including any event that would lose value inherent in person, does not exhaust the material damage being subjective and not subject, for the purposes of Recoverability, the limit arising from the reserve of the law related art. 185 cod. pen .. Such damage does not, therefore, the qualificabilità of tort law as a crime, since the reference to cases where the law allows compensation for non-pecuniary damage may well be told, after the entry into force of the Constitution, the provisions of Law crucial when one considers that the recognition in it, the inviolable rights inherent in the person not having an economic implication but necessarily require its protection, and thus constitutes a particular case by law at the highest level, di riparazione del danno non patrimoniale.
A rafforzare l’autonomia dei giudizi ha, poi, contribuito quella giurisprudenza che ha chiarito che la condanna generica al risarcimento dei danni, contenuta nella sentenza penale, pur presupponendo che il giudice riconosca che la parte civile vi ha diritto, non esige alcun accertamento in ordine alla concreta esistenza di un danno risarcibile, ma postula soltanto l’accertamento della potenziale capacità lesiva del fatto dannoso e della probabile esistenza di un nesso di causalità tra questo ed il pregiudizio lamentato, salva restando nel giudizio di liquidazione del quantum la possibilità di esclusione dell’esistenza stessa di un danno unito da rapporto eziologico con il fatto abuse (among other, cf. Cass. No 329/01, No 7695/08).
On the other hand, case law has affected the specific tasks of the civil proceedings of evidence of harm, emphasizing that while the criminal court puts the figure at the center of the observation of the accused and his status libertatis, civilian re-sarcitorio look at the damage and its legally protected positions. Hence the assertion that, in terms of tort liability, causation is still governed by the principle laid down in Articles. 40 and 41 cod. pen. (For which an event is considered to be caused by another if the first was not the case in the absence of the second) and by the criterion of properly so-called causality on the basis of which, within the causal chain, it is necessary to emphasize only those events that do not appear, to an ex-ante, quite unlikely, without prejudice, however, the diversity of rules of evidence applicable in because of different values \u200b\u200bunderlying the two processes in the sense that in establishing the causal link in civil matters, is the rule of preponderance of the evidence or "more likely than not", while in a criminal trial is the rule of evidence " beyond reasonable doubt "(Cass. No 576/08).
Based on all the arguments so far carried out can end in the sense that, following entry into force of the new Code of Criminal Procedure, must be considered definitively cleared dall'ordinamento the principles of unity of civil and criminal courts and the consequent prevalence of criminal proceedings on civil proceedings, vigendo, rather than the principle of equality and originality of the different Courts and the substantial autonomy and separation of judgments, with the exception of certain types of formal decision to exhaustively specified. It must therefore be enunciated the following principle of law:
"The provision of art. 652 cpi (such as those of Articles. 651, 653 and 654 of the Code of Criminal Procedure) is an exception al principio dell’autonomìa e della separazione dei giudizi penale e civile, in quanto tale soggetta ad un’interpretazione restrittiva e non applicabile in via analogica oltre i casi espressamente previsti. Ne consegue che la sola sentenza penale irrevocabile di assoluzione (per essere rimasto accertato che il fatto non sussiste o che l’imputato non lo ha commesso o che il fatto è stato compiuto nell’adempimento di un dovere o nell’esercizio di una facoltà legittima) pronunciata in seguito a dibattimento ha efficacia di giudicato nel giudizio civile o amministrativo per le restituzioni ed il risarcimento del danno, mentre alle sentenze di non doversi procedere perchè il reato è estinto per prescrizione o per amnistia non va riconosciuta alcuna efficacia e-xtrapenale, benchè, per giungere a tale conclusione, il giudice abbia accertato e valutato il fatto (nella specie, il giudice penale, accertati i fatti materiali posti a base delle imputazioni e concesse le attenuanti generiche, per effetto dell’applicazione di queste ha dichiarato estinto il reato per prescrizione); b) che, in quest’ultimo caso, il giudice civile, pur tenendo conto degli elementi di prova acquisiti in sede penale, deve interamente ed autonomamente rivalutare il fatto in contestazione (nella specie, il giudice civile, ha proceduto ad un riparto delle responsabilità diverso da quello stabilito dal giudice penale)”. 10. – L’esame dei ricorsi.
The first three principal grounds of appeal, arguing the matter dealt with so far tend to deny the independent assessment of the civil court must be, therefore, rejected. All other reasons, from fourth to ninth, are in part inadmissible and in part unfounded. They are ineligible if they tend to get from the court of legitimacy a new and different assessment of the merits of the dispute and the evidence gathered, are unfounded denounce omitted when pronouncing, violations of laws and breach of motivation in the contested decision is not given encounter.
As to appeal, the first reason it is argued that the claim against the LC would be "impractical and unreasonable" as transactions signed in 1992 has affected the entire claim for compensation. The second reason supports the lack of responsibility of the applicant in the production of the event.
For this action (which are reasons, however, generic and devoid of self-sufficiency as the reference to documents and evidence which is not even played the tenor) take the same consideration without regard to the main application. Again it should be, in fact, found the introduction of substantive issues ineligible Cassation and the generic complaint of allegations of legitimacy which the contested decision, in a fair and reasoned logic, does not appear affected.
The contrast of case law as the basis of subject matter is the uniqueness of the issue and involve the whole losing the mutual compensation between the parties of the costs of appeal. PQM
The Court, meeting in the actions and rejects them entirely offset between the Parties the costs of appeal.
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