JUS - 2021 - 1 - autori-vari - Vita e Pensiero - Fascicolo digitale Jus Vita e Pensiero

JUS - 2021 - 1

digital JUS - 2021 - 1
Digital issue
Journal JUS
Issue 1 - 2021
Title JUS - 2021 - 1
Publisher Vita e Pensiero
Format Digital issue | Pdf
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Primo fascicolo del 2021


Ricordo della Prof.ssa Ombretta Fumagalli Carulli
by Aldo Travi pages: 2 Download
Mobbing e teoria dell’atto illecito
by Antonino Astone pages: 37 € 6.00
The essay deals with the problem of mobbing behaviors’ relevance, whose legal boundaries are identified, in order to differentiate them from persecutory conducts in a broad sense, carried out in spheres  other than work. In this logic, the author excludes the existence, alongside corporate mobbing, of family mobbing, as well as rental mobbing. Having identified the types of harassment prejudices, the  investigation continues to examine harassment offense’s structural peculiarities by questioning whether such an offense is characterized by enriching the elements which constitute the civil offense’s  structure. In this direction it is noted that the mobbing conduct is relevant sub specie iniuriae, thus constituting a source of compensable damages, only if it is subjectively qualified by a persecutory  intent. The conduct’s subjective coefficient which is placed in the area of effectiveness rather than in that of relevance in the context of the hypothetical structure of the liability’s legal case, in the  persecutory offense is attracted into the orbit of illegality, defining the structure together with other elements.
Dalla ‘‘giustizia della carità’’ alla ‘‘carità della giustizia’’. La critica a una teoria kelseniana (e non solo)
by Salvatore Berlingò pages: 18 € 6.00
The progress of democracies towards goals of increasingly substantial justice does not seem, according to what is argued in the essay, to be favored by keeping the contributions of religious beliefs or  faiths on the margins of the ‘‘public square’’. These beliefs, especially if they are minority and/or newly created – by virtue of their attitude of critique of the established order and according to their continuous stimulus in the direction of ever new structures – facilitate, instead, the realization of the highest level of values compatible with the context of a specific socio-cultural reality, thus making 
vital (no longer inactive) the legal dimension of law.
L’efficacia diretta della “direttiva servizi” e la sua attuazione da parte della pubblica amministrazione italiana: il caso delle concessioni balneari
by Matteo Manfredi pages: 16 € 6.00
The entry into force of the “Services Directive” pointed out the issue of the coastal domain management in the Italian legislation. According to art. 12 of the Directive, Member States have an obligation to ensure that beach concessions are granted for a limited duration and through an open, public selection procedure based on non-discriminatory, transparent and objective criteria. The preferential right of  the concessionaires was abolished by the Italian authorities, starting from 31 December 2012. However, subsequent amendments legislation extended the legal force of that regime further until 31 December 2033. The current Italian legislation creates legal uncertainty for beach tourism services and does not implement the Promoimpresa judgment of the Court of Justice, which ruled that the  automatic extension of existing concessions is inconsistent with EU law. In this context, the administrative authorities have to deal with the conflict between national law and art. 12 of the Services  Directive, recognised as a directly effective provision in the settled EU and Italian case-law.

Pandemia e responsabilità civile. I problemi

Accertamento del nesso di causa nelle ipotesi di decesso “da Covid-19” in pazienti con altre patologie gravi
by Martina Flamini pages: 9 € 6.00
The essay wants to point out the differences concerning mainly the burden of proof between an ordinary medical malpractice case and the one that will very likely come out from pandemia for Covid.
La responsabilità sanitaria ai tempi della pandemia
by Massimo Franzoni pages: 10 € 6.00
The essay evaluates the state of the art of medical malpractice liability, as it evolved until the judgments of the Court of Cassation dated 11 November 2019. It also addresses how and to what extent  medical malpractice liability has been affected by the pandemic phenomenon. It suggests that it is preferable to complete the reform plan which makes difference between the medical malpractice negligence and the hospital organizational liability. The A. does not recommend the introduction of new rules, but at the same time he peruses the necessity to adopt national barème on macro personal  injuries, as provided for by Article 138 of the Italian Insurance Code.
Le assicurazioni private e la classificazione dell’infortunio derivante da Covid-19
by Caterina Giovanetti pages: 9 € 6.00
The essay starts from a historical and systematic reconstruction of both social security and private insurance systems and highlights their different function and object of protection. The first one aims in  fact to protect the person of the worker as an interest of the community, the second one satisfies instead private interests of the insured party. Given the socio-economic purpose underlying the legislation  introduced for the pandemic emergency, art. 42 D.L. n. 18/2020, which qualifies Covid-19 infection as an accident from a social security point of view, does not apply to private insurance,  where viral infections cannot be considered as violent injuries.
Frammenti di responsabilità sanitaria ai tempi del contagio
by Roberto Pardolesi pages: 13 € 6.00
Legislating in a legal system that appears to be characterized by a marked liquefaction of sources is not easy; legislating in the wake of the emergency, in a. context distorted by a crisis that dulls everything, is much more complex, because it exposes to the risk (of triggering enormous confusion and) of subverting the costs/benefits analysis of any initiative. The attempts to create a regulatory shield against liability as a consequence of Covid-19 emergency bear witness to this. Assuming that the problem is simply to protect health professionals against a treacherous wave of litigation, the debate has essentially unraveled along the axis represented by the question of whether that result postulates the intervention of the legislator or may be governed at a hermeneutic level, in  the light of the regulations in force. If, however, one drops the torpor of a monotonic analysis and opts for a holistic view, the perspective changes radically; and the regulatory shield proposals turn out to  make little sense.
Il fascino irresistibile dei piani no-fault
by Giulio Ponzanelli pages: 5 € 6.00
The essay wonders if the tort liability rules can offer adequate protection to the victims of Covid-19, in a situation where no fault or negligence can be identified and where the scale of the injured persons  deeply suggest the adoption of alternative tools.
La pandemia Covid-19 tra funzioni della responsabilità civile e modelli indennitari
by Claudio Scognamiglio pages: 19 € 6.00
The essay examines the main problems arising in the area of civil liability as a result of the Covid-19 pandemic, questioning the appropriateness of using publicly funded indemnity schemes in this field.

Le (false) alternative in tema di democrazia locale

Autonomia finanziaria degli enti locali e democrazia locale
by Andrea Morrone pages: 21 € 6.00
The essay deals with the relationship between public finance and local democracy. Through a historical-constitutional analysis, an investigation on the contents of the budgets of local administrations, and  on the constitutional jurisprudence following the constitutional reform of Title V and the crises of the Third Millennium, the A. shows the instability and uncertainty of the local public finance system and its  consequences on local public administration. Nevertheless, the essay wants to clarify the value that the public budget, with its fundamental decisions on income and expenses, has for the quality of local  democracy and for the effectiveness of the principles of representation and political responsibility.
La democrazia locale: ragioni, forme, prospettive
by Filippo Pizzolato pages: 16 € 6.00
The essay argues the constitutional centrality of local democracy, both in the light of the Italian Constitution, and of the practices of democratic participation at the municipal level. These practices have  already stimulated the adoption of institutional tools suitable for promoting and enhancing citizens’ participation. The challenge for local democracy is the enhancement, rather than the dispersion, of this  democratic energy in the relationship with the highest institutional levels, starting with the European Union.
Sorte dell’autonomia nei processi di trasformazione politica e al cospetto della pandemia
by Sandro Staiano pages: 8 € 6.00
The essay examines the relations between the transformations of the party system and the events of territorial autonomy, on the basis of a perspective of analysis that regards political parties and  territorial autonomies as the two engines of the democratization of the legal system set up by the Italian constituent assembly. In the recent experience, this approach reveals the close relationship between the following two phenomena: on the side of autonomies, the redefinition of their form of government in the direction of a monocratic concentration of power, initially enacted at the municipal  level and later extended at the regional level too; on the side of the party system, the progressive generalization of the personal party and its increasingly strong inspiration to a populist mentality, which  find a favourable ground in the hyper-presidentialist institution that is typical of the regional context. These factors prevent territorial autonomies from becoming an instrument of democratization of the  legal system and overcome the North-South cleavage. The result is a profound deviation from the constitutional framework, a deviation that reveals itself through the Covid-19 pandemic, which highlights  the difficulties in dialogue between the State and the Regions and the worsening of the pre-existing territorial gaps.
La democrazia locale nella prospettiva costituzionale: alcune considerazioni sintetiche
by Giancarlo Rolla pages: 14 € 6.00
The purpose of these brief considerations is to summarise the many perspectives according to which the issue of the autonomy of territorial communities and popular participation in decisionmaking processes can be addressed - from a constitutional perspective. First of all, the autonomy of territorial communities has been a distinguishing feature of the forms of state: firstly, federalism with respect  to constitutional monarchies, and secondly, decentralisation with respect to the centralised unitary State. Secondly, local administrations have been the most fertile ground for experimenting with new  institutions to improve relations between citizens and the organs of representative democracy. Finally, the multiple experiences of participatory democracy can be classified into forms of self-dministration, self-management and self-governance.
pages: 4 € 6.00
[V. FERRANTE] A. Ingrao, Il mercato delle ore di lavoro. Interposizione nei rapporti di lavoro autonomo, Giuffrè Francis Lefebvre, Milano 2020

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