Sequestri penali di partecipazioni sociali

Criminal organizations invest incomes deriving from illegal activities in legal activities. To the scope to fight criminal organizations, patrimonial measures often are more effective than personal ones. The mafious enterprise presents a different feature than illegal one: often, it is a legal activity and, formally, operates in legal manner. To oppose Mafia and other criminal organizations, on the economic side, it is needed attack the enterprise. Nevertheless, the latter is an activity and, then, can not be sequestrable. Therefore, only equity holdings or business (in the sense of the whole of the assets used to carry out an enterprise) can be object of sequestration. Because of characteristic of the goods, the penal sequestration of equity holdings and of business shows problems concerning the coordination between procedural law and commercial law, and the need to identify the effects on company’s organization. In case of sequestration of equity holdings, the official receiver has administration of these goods, by virtue of article 2352 of Italian Civil Code. This article, in the opinion of the author, contains general principles applicable to all kind of sequestrations of equity holdings. Nevertheless, this civil disposition must be adapted in case of penal sequestrations, because of the different purposes aimed by civil sequestrations and penal ones. Infact, the latter has both public and patrimonial purpose. The work concludes that penal official receiver can not have more incisive a position in the company than civil official receiver. Both can only exercise rights included in the sequestered equity holdings. So, penal sequestrations of equity holdings can not have the effect to overtaking the typological organization – capitalistic-corporative - of companies. In case of sequestration of business, placed by virtue of protective order issued against one or more shareholders, the official receiver has not the powers to administrate the company, infact the administration of company remains to directors. So, officiale receiver can only take actions for the purpose of avoid lost of business. If, the protective order is issued against the company, the sequestration of business extends itself to equity holdings, allowing the penal official receiver to exercise corporative rights.