LA RILEVANZA PENALE DELL’ABUSO DEL DIRITTO

This study is aimed at exploring the relevance of abuse of right (or rights) in criminal law. The abuse of right is a Civil Law category dealing with the internal limits set forth to the exercise of individual rights. Truly, right holders are deemed allowed to neither execute nor implement the powers and capacities establishing the very substance of their rights for purposes other than the interest entitling them to hold such rights. This category has strongly been developed over years and detailed a great number of jurisprudential applications in several fields (e.g. the common abuse resulting in practices referred to as copycat acts, abuse in contracts, abuse of parental authority). Even if the rationale of abuse of rights shows an atypicalness seemingly far from Italian criminal law’s principles, it characterizes many institutes of the general part and offences. For this reason the case-law criteria applied for abuse of right and its general intent require a comparison between its atypical principles and the general principles of Criminal Law, for instance the concept of "type", the act of fling accusations against somebody according to the principle of nullum crimen, nulla poena sine lege previa, scripta, stricta. Abuse is something “atypical”, characterized by an express contrast against principles, theoretical regulations rather than actual rules, so the research deals with what happens when this contrast qualifies an element of the rule (e.g., abuse of power, abuse of information, “unlawfully”). So, the research attempts to the different issues in criminal law which may be associated with the institution. Among them, we shall mention the exceeding of the practical limits of justifications (art. 51, 55 c.p.); subject matters of the special part – among which, the arbitrary exercise of his rights (art. 392 c.p.), considered a form of “abuse” of right by many – and extortion in case of threat of making use of a right (art. 629 c.p.), when an actor threatens to make of use of a legal remedy with a different purpose with respect to its original legal attribution; the relation between abuse of rights and violation of a duty of loyalty; the resistance of critical function of legal asset, which is a necessary – although not sufficient – condition to justify indictment within the principle of the “ultima ratio” in criminal law; the overflow of the typical classification of the actor’s animus. The research investigates also the particular application of the abuse law to tax crimes with reference to tax avoidance, with regard to the debate in criminal justice after that the Italian Supreme Court restored the elusive behaviour of “relocation abroad” as a criminal offence (Corte di Cassazione no. 7739/2012), by reducing the offence to a crime of misrepresentation as set forth in Art. 4 of Legislative Decree no. 74/2000 and with reference to legislative interventions during 2015, that establish the criminal irrelevance of abuse of rights. Others fields of investigations are also those of market abuses and historical revisionism.