The essay investigates the compatibility of punitive damages with the Italian legal order and emphasizes their contrast with the Italian public order, understood as the regulatory framework given to the community. It examines the difficult integration of punitive damages with the Italian legal system from different viewpoints: i) that of the irreconcilability with the constitutional guarantees; ii) that of the contrast with the civil responsibility; iii) that of the unsuitability with respect to the infrastructure of the civil procedural rules. In this perspective, it examines a number of rules, catalogued by certain authors and judgments, in particular by the Sezioni Unite of the Corte di Cassazione no. 16601/2017, as points of emergence of the tendency in the punitive sense of tort responsibility. This investigation exposes, on the other hand, the tendency of such cases to reveal instead the various complementary means of protection provided by the legal order to react to the violation, in view of the protection of the public and private interests affected. Finally, the Author criticizes the emergence of a tendency towards the indiscriminate opening of the legal system to the solutions contemplated by foreign legal orders, which represents a threat to the principle of certainty of the law, as it involves the continuous and unpredictable rewriting of the legal categories ordering the social environment.
DEL «RISARCIMENTO PUNITIVO» OVVERO DELL'OSSIMORO
Montanari A
2019-01-01
Abstract
The essay investigates the compatibility of punitive damages with the Italian legal order and emphasizes their contrast with the Italian public order, understood as the regulatory framework given to the community. It examines the difficult integration of punitive damages with the Italian legal system from different viewpoints: i) that of the irreconcilability with the constitutional guarantees; ii) that of the contrast with the civil responsibility; iii) that of the unsuitability with respect to the infrastructure of the civil procedural rules. In this perspective, it examines a number of rules, catalogued by certain authors and judgments, in particular by the Sezioni Unite of the Corte di Cassazione no. 16601/2017, as points of emergence of the tendency in the punitive sense of tort responsibility. This investigation exposes, on the other hand, the tendency of such cases to reveal instead the various complementary means of protection provided by the legal order to react to the violation, in view of the protection of the public and private interests affected. Finally, the Author criticizes the emergence of a tendency towards the indiscriminate opening of the legal system to the solutions contemplated by foreign legal orders, which represents a threat to the principle of certainty of the law, as it involves the continuous and unpredictable rewriting of the legal categories ordering the social environment.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.