La nuova soglia di punibilità nell'omesso versamento delle ritenute previdenziali e assistenziali fra dimensione dogmatica e capacità "selettiva"

Abstract

This study concerns the new financial threshold of punishability introduced by legislative decree n. 8/2016 for the criminal offence of failing to pay pension and welfare deductions (art. 2 legis. Decree n. 463/ 1983). After a critical examination of the first interventions of the Supreme Court on its theoretical framework, the essay analyses the significant relationships between the harmfulness of the offence and the threshold itself, to individuate its legal nature. In the first place, we highlight how the protected interest cannot be read in financial terms, as the protection of functional interests emerges, to be anchored, amongst others, to the constitutional principles about pensions and welfare (art. 38 Const.). In particular, the offence cannot be assimilated to the structure of embezzlement. We suggest, therefore, that the financial threshold is eccentric with respect to the harmful dimension of the failure to pay and acquires a purely deflative connotation. It is considered an extrinsic objective condition of punishability. In the final section of the work, we will show, amongst other things, how the threshold does not have such a selective ability as to found the requalification of the offence from criminal (above threshold) to administrative (below threshold): the deflative intent has been pursued by the legislator without considering the real effects of its introduction on the structure of the offence, in detriment of the criteria of proportionality and subsidiarity, of reasonableness and of effective sentencing gradualism. In the end, the new norm has amplified some aporias already present in the system of protection of social welfare.