La responsabilità civile tra compensazione e sanzione: alla ricerca di un ordine

This doctoral thesis focused on the reconstruction and analysis of the functions of the institution of non-contractual civil liability: the work sought to offer a critical reinterpretation of these aspects. The issue was tackled, from the outset, by dwelling on the terms in which the problem seems to be correctly understood: the use of the sociological factor (in its most radical nomogenetic current) in the study and reconstruction of the functions of civil liability was therefore contested, finding confirmation - despite trends to the contrary - of the fact that the object on which the jurist's attention must focus is constituted by the norms and the broader system that can be derived from them. Consequently, some reservations have been expressed about certain functional analyses that, although more attentive to normative reality, have ended up presenting as a 'function' nothing more than certain 'social effects' resulting from the application of legislative provisions: in this way, the range of functions has been downsized and brought back to the traditional (and always valid) dichotomy between compensation and punishment. The aforementioned conclusions were then also used in the development of historical comparisons, which are often resorted to in order to identify precedents to support the assertion of an alleged current co-functionality of the sanctioning institution. From this viewpoint, in addition to contesting the unfounded relevance of the subjective element of wilful misconduct, it was noted that the excessive and monopolising focus on fault was also the result of dogmatic visions that had weak foundations in the positive datum and in relation to which it was possible to affirm that the sanctioning function of civil liability was not found in the normative datum, but imposed by the interpretation of jurists. The final part of chapter three focused on non-asset damage and its progressive legislative recognition, noting how compensation for this specific injury was also characterised by an exclusive compensatory function, given that the legislator excluded the possible competition of a sanctioning function against the injured party.