Abstract

This work inquires the importance of the special system concerning obligation «in solido » to pay administrative sanctions, as scheduled in TUF and TUB rules. These latter disciplines schedule, indeed, that the bank, or the financial brokerage company, which is obliged «in solido» to carry out the sanction imposed to the author of the illicit, has the duty - that means, not only the possibility - to claim back for it from the author of the illicit in lieu of whom the sanction has been paid. In particular, the main question inquired in this work is about the recent orientation of the Joint Chambers (Corte di Cassazione), which from this rule draw inferences concerning the impossibility for the person identified as the author of the illicit to contest, to the agency which paid, to have received - and consequently paid - an unlawful sanction; furthermore, the Supreme Court drawed the conclusion that the presumed author of the illicit could object to the administrative sanction although the payment injunction was addressed only to the «in solido obliged» agency. In this work we disagree on the Supreme Court reasoning (but not on the final conclusion); we think, indeed, that the duty to claim back the sum that has been carried out from the agency doesn't affect these issues. Nevertheless, according to the general principles of the obligation «in solido», the author of the illicit cannot object that his/ her «solvens-agency» have paid an unlawful sanction but he/she can object directly to the sanction which assessed his/her liability, although the payment injunction was addressed only to the «in solido obliged» agency. Finally, is to be supposed that the law rule concerning the duty to claim back the sum paid suggests the unavailability - on deterrence's purposes - of the right to claim back, making it not susceptible to demission on the basis of a settlement (or transaction).