Gli amministratori indipendenti e i flussi informativi. (Profili di responsabilità penale).

This research is focused on the independent directors and on the powers they have in more small companies, in companies with concentrated ownership and in listed companies, where they receive more attention. The thesis starts analyzing the rise and development of independent directors in common law systems, where they first born. In Italy the first appearance of the independent directors is recorded in 1999 in the Code of self-regulation for listed companies (issuers, therefore in a source of self-regulating soft law), which merely provided that a sufficient number of directors were independent. Our country, as well as most of Continental European legal systems, is characterized by the concentration of share ownership by a limited number of members, or of a single shareholder, thus giving rise to a kind of "imperfect overlapping" between ownership and control where shareholders meet the standards of the right of ownership by directly controlling the corporate bodies actions. This starting postulate ensures that the independent administrator carries out a different function in our country: it is a matter of establishing a body counterbalancing the majority shareholders and able to verify that they do not get private benefits detrimental to the company, since the independent directors represent a means to ensure the objectivity and impartiality of assessment inside an administrative body that could become the suitable place for reference shareholders decisions. In this context, the most obvious agency problems arise in the relationship between majority and minority shareholders. Discipline concerning this issue is inadequate and incoherent and mainly focuses on the two aspects of the board of director composition and the definition of independence requirements. But one fact is irrefutable: today in our legal system, the independent directors are in charge of "controlling - monitoring (not intended as ex post verification) as immediate control of the management being proposed." Then the survey goes to analyzing Italian law (in the traditional systems, in the one-tier systems or two-tier systems) and the different notions of independence which can be found in the soft law, civil law and in other statutes. The essence of independence is concerned that being independent means being able to judge independently the decision proposed by executives, thus resisting to the “groupthink” phenomena and challenging effectively what the CEO does. As regard powers and duties the thesis will show that independent directors will carry out their duties adequately and effectively, if they will receive complete and timely information. Therefore, according to the regulations reconstruction, the central issue will see its main object in the flows of information inside the company and in the mechanisms provided for by the legislator to ensure that all directors can act on a fully informed basis. What are, then, the powers belonging to the independent directors in the traditional Italian system and in other statutes to regularly act on a fully informed basis? And when is it legitimate to recognize a criminal liability due to an improper crime of omission committed by the independent directors, pursuant to Art. 40 cpv Italian Penal Code (according to which "not preventing an event that the parties have a legal duty to prevent means causing it")? The study aims is to built the powers/duties of independent directors information an consequently investigating the possibility of an extension of criminal liability to independence directors.