Research program
The Draft Constitutional Treaty, the Eu Charter of Fundamental Rights and the privat autonomy.
University Co-ordinator
Università degli Studi di SALERNO -
DIRITTO IMPRESA E LAVORO - FISCIANO - SALERNO(SA)
Research Unit Leader
Giovanni PERLINGIERI
Description
In the perspective of a civil right more and more directed to become a law of the cives towards the European Union and of the community, as well as susceptible market to protect only already not the consumer but the small enterprise and the citizen, the search it is proposed the objective to submit to revision criticizes activity “ermeneutica” and the relationship between autonomy and “eteronomia” in the community relationships of enterprise. This in the attempt to adjust such relationships to the changed context of the sources and the lines drives some European Constitution in his being and in his becoming, which to the art. 16 it recognizes individual economic liberty and it postpones, for the functional aspects, the guarantees and the limits, to the community law and the legislations and national routine. To the light of such normative datum, in which the community law represents the picture of reference that single States, every second the proper models of << economic Constitution >> they graft on the own institutional and normative schemes, a “rivisitazione” of problem list is imposed with the purpose to harmonize the actions of enterprise in a dimension of conformity to the principles and the European values. In this optics a critical revision is necessary some relationship between rules of behavior and rules of validity. To such elegant, in fact, keeping track of the connection between autonomy, “eteronomia”, activity of enterprise and market will be tried to analyze problem list to the light of a careful methodological formulation to the criterions of proportionality reasonableness and adequacy by now integral part of the community discipline, of the last legislative interventions, as well as of the recent reform of the German arrangement. The doctrine and jurisprudence, seem besides to not be fully aware any demand, expressed by the normative community, of a composition, not only of the affairs of the enterprise and the consumer, and, therefore, of the market, but also of some collective and diffused affairs that are affirming him and that they show a crisis of the sovereignty of the national states in comparison to the international organisms. The evolution in action in the community arrangement imposes to read the art. 41 Cost. in his function of regulation of the market, to guardianship of the pluralism: in such context social utility is not more function of the liberty of economic initiative as, rather, factor of "controbilanciamento" of the same one, as expression of objectives what the pluralism, the amelioration of the way and the quality of life, the occupation, the social protection, the economic-social cohesion, solidarity, the correctness and the completeness of the information, guarantees all of the full and free development of the person. The technical notes of the balancing allow to also effect such values through the explication of private autonomy. Also holding account some narrow relationship between normativof civil law and of penal law, will try him, also, to individualize a solution that, afar from the c.d sharing principle of not interference between rules of behavior and rules of validity, is directed to revalue the general clause of good faith to the light of the values normative vigentis, and therefore, to escape from that formulation favorable “ermeneutica” to a coincidence between violation of the correctness and invalidity of the contract. This, yet, considering the quantitative and qualitative peculiarities of the affairs involved in the concrete case and "contestualizzati" in the italo-community system of the sources. The all in the attempt to reestablish, in an epoch of "globalizzazione" of the economy, of culture, of formation and of the information, the correct relationship between criterions of check of responsibility and control of validity on the actions of private autonomy. Initially the search will be stopped on the lines distinctive intercorrentis between diligence and good faith. The first one, represents in truth, according to a consolidated orientation of doctrine and jurisprudence, a parameter of evaluation of the behavior of the parts, operating as criterion of responsibility. The second would contribute to the determination of the in demand appointment to the parts, constituting measure of the performance or, in more ample sense, of the behavior set in to be legally from the holders of the remarkable relationship. In the perspective of a recovery of the relief of the judgment of good faith on the validity of the contract and on the “antigiuridicità” of the behaviors of the parts, an excessive space can be verified assigned to the rules of correctness you don't risk to translate in a "ridimensionamento" of the function developed by technical parameters, directly ricollegabili hauls diligence, in the determination of the responsibility of the protagonists of the circumstance negotiate her. And in such context the common datum to all the community arrangements can not be neglected, according to which the call to the diligence allows to refer to the specific and personal knowledges of the agents, the that it constitutes an aspect of particular interest with reference to the contracts, that protagonists see entrepreneurs and professionals. To such necessity must not always be neglected the datum of her great “emersione”, on influence of the common law, of the economic operation on the contract and of the connection negotiate her on the concept of structure of the “fattispecie”. Such positions lend the side to more than a critical relief, from the moment that they seem to face the matter making lever on the systematic traditional that, from a side it resolves the plurality of the contract in the communion of purpose and, it recognizes in the economic operation only a scheme of composition of the affairs in alternative and different appearance from the contract from the other. Therefore, her more and more frequent "emersione" of orders of interest in which are involved three or more subjects and the use of the contractual tool, what mean of interrelation more flexible than the law knows, it induces to question on the elasticity of the notion “codicistica” of contract and on the concept of part of the same.
|
