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2019, Circonvenzione di incapace e vecchio reato di plagio
The author carries out an historical review of the crime of "plagiarism", starting from the definition given in the Roman legal tradition and in that of European cultures outside the Roman system, to indicate how the attribution of the crime to the illicit possession of other people's slaves was constant and common. It is emphasized that this notion has remained prevalent over the centuries, until reaching the codicistic normative definitions of the various States present in pre-unification Italy, when there is a first evolution that defines it as a subjugation of subjects in foreign armies, until in the Grand Duchy of Tuscany plagiarism begins to take shape as a crime against freedom, while during fascism it becomes a crime against the individual personality, with a complete following definition in the Italian penal code of 1889. The reason - a lack of mandatory prescription - which led the Constitutional Court to declare the code law unlawful is then reconstructed. After having indicated the signals proposed by psychology and sociology for the understanding of the dangers of falling into the victimization of weak subjects, the essay, expressing the consideration that the lack of a new definition of the crime of plagiarism, suitably to be defined to avoid the censorship of the violation of the obligatory nature, leaves serious behaviors of subjection to the detriment of the weak subjects substantially unpunished, with offence against their fundamental rights, proposes a new formulation of the crime of plagiarism. We then examine, with a wide critical review of the jurisprudence, the crime of circumvention of incapable, indicating the most relevant cases and highlighting how the failure to reintroduce the crime of plagiarism, in a version compatible with constitutional principles, tends to extend the boundaries of the circumvention of incapable, as well as of other crimes, in order to respond to a punitive social need that looks urgent in contemporary historical reality.
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