Commentary on Judgment No. 21878 of 2023: General Intent and Awareness in the Offense of Obstruction of Supervisory Authority

Judgment No. 21878 of March 16, 2023, filed on May 22, 2023, offers significant insights into the understanding of the offense of obstructing the exercise of supervisory authority functions, as provided for by Article 2638, paragraph 2, of the Civil Code. In particular, the Court of Cassation has clarified the nature of the intent required to constitute this criminal offense, excluding recklessness (dolo eventuale) and emphasizing the importance of the concept of "awareness."

The Offense of Obstruction of Supervisory Authority

According to the judgment, the offense under Article 2638, paragraph 2, is characterized by a subjective element of direct general intent. This implies that the perpetrator must act with the consciousness and will to obstruct the supervisory authority, without a mere possibility of verifying the harmful event being sufficient. The Court therefore reiterated that the adverb "knowingly" present in the provision carries decisive weight in the interpretation of the rule.

• General intent requires a direct will to commit the offense.
• The use of the adverb "knowingly" excludes the possibility of establishing recklessness (dolo eventuale).
• The judgment aligns with previous case law that clarifies the specificity of the subjective element required.

Headnote of the Judgment

Offense under Art. 2638, paragraph 2, of the Civil Code - Subjective element - General intent - Normative meaning of the adverb "knowingly" - Exclusion of recklessness (dolo eventuale). The offense of obstructing the exercise of supervisory authority functions, referred to in the second paragraph of Art. 2638 of the Civil Code, is a free-form event offense with direct general intent, and recklessness (dolo eventuale) must be excluded among the forms of intent capable of constituting the criminal offense, given the use of the adverb "knowingly" in the criminal provision.

Conclusions

Judgment No. 21878 of 2023 represents an important clarification in the area of corporate offenses, specifically concerning the offense of obstructing supervisory functions. The distinction between general intent and recklessness (dolo eventuale) is crucial for the correct application of the law, and the Court of Cassation has provided clear guidance to avoid interpretative ambiguities. This approach ensures greater protection of the integrity of supervisory functions, which are essential for the proper functioning of the economic and legal system.