Rivista 2021

The Review publishes original papers covering a large array of topics in Law, general theory of Law and multidisciplinary studies i.e. ethic issue, legal aspect of technology etc. The Review aims to provide also a forum which facilitates the development of the legal aspects – especially in any field of private law is welcomed - of the scientific research and innovation, at European and International levels. Particular attention will be paid on the rights, obligations and the legal relationships arising from the research and innovation activities, as well as on the contracts to carry out the scientific researches and to exploit the results either in academic, market contexts and human rights. The Review will study the legal discipline of the European and National policies and of the legal instruments to implement them, especially the funding programmes and Human rights. The Review will study the legal discipline of the European and National policies and of the legal instruments to implement them, especially the funding programmes and Human rights.

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Call for the dictionary

In 2012, the proposal led by Universitá degli Studi di Perugia, Italia and the Tecnológico de Monterrey, Mexico City Campus won the contest for the project IR&RI (Individual Rights and Regional Integration). This contest was proposed by the Jean Monnet Programme of the European Union. Due to the funding obtained by such a program and as a result of its efforts, not to mention the international seminars in Italy and Mexico in 2013, two books were published: the anthology Human Rights and Regional Integration and the Analytic Dictionary on Human Rights and Legal Integration...

Review

Antonio Palazzo

Editorial. Venti anni di Diritto e Processo nello Studio perugino del XXI secolo. Nel solco di una lunga tradizione: dalla Scuola del commento all'interesse giuridicamente rilevante.
Editoriale a cura del Prof. Antonio Palazzo per i vent'anni della rivista Diritto e Processo.

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Hedley Christ

WHAT CAN WE SAY LAW IS: DOES LINGUISTICS HELP IN THE ANALYSIS?
From a wide range of different sources, including a number of different countries, customary law, religious law and international law, linguistic analyses of legal discourse can deepen not only the understanding of the nature of law but also widen the understanding of legal topics. Thus, the paper aims to analyse the key aspects of legal discourse and the importance of its understanding through the analysis and examination of the language of the law, as well as why language or its linguistic analysis is important to law.

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Francesco Scaglione

AUTONOMIA CONTRATTUALE E REGOLAZIONE DEL MERCATO ELETTRICO
The essay, starting from the problem of the integration of electricity supply contracts, reflects on the relationship between private autonomy and the powers of the judge to ensure the principle of substantial equality between the parties and the justice of the contract.

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Manuel Millàn Torres, Favio Farinella, Roberto Cippitani

TECNOLOGÍA, DATOS PERSONALES Y PANDEMIAS
The ongoing pandemic has been the cause of many restrictions to rights, based on public health. This article elaborates on the relationship between human rights and the pandemic while technologies and artificial intelligence are used for social control. The discussion spins around a noun and two verbs. The pandemic constitutes an emergency that, as such, shifts our normality to unknown places. At the same time, it emphasizes pre-existing critical social situations and threatens freedoms. The novelty brought by this crisis is that the state of emergency makes use of new technologies and artificial intelligence. They can collect sensitive data such as those corresponding to health as a key to collect, store and process sensitive data. The methodology of the article refers to a comparative description (South America-Europe) which is based on a qualitative and quantitative documentary review to gather elements that contribute to the subject.

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Stefania Tuccani

LA CARTA D’IDENTITÀ TRA TRADIZIONE E INNOVAZIONE
The essay analyzes the historical and legal profiles of the concepts of identity and identification, with particular attention to giving indications on the historical evolution of the purposes of the administrative identification document of the natural person (Identity Card), starting from the era of ancient Rome, passing through the Middle Ages, to get to the advantages and criticalities of the modern identification tool represented by the Electronic Identity Card.

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Alberto Mattia Serafin

DIVAGAZIONI SU RAGIONEVOLEZZA E PROPORZIONALITA'
The essay analyzes the concepts of reasonableness and proportionality intended as concepts that inform the judgments made by the Italian Constitutional Court with reference to a large number of issues. In particular, the fundamental constitutional criterion of reasonableness, understood as a control of congruence between means and purpose, is analyzed with reference to cases of succession due to cause of death, in which there is a conflict of interests between the provisions of the form (art. 28 Notarial Law) and the purposes of the substance (article 2645-ter of the Italian Civil Code).

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Roberto Paradisi

SE LA LEGITTIMA DIFESA È SCOLPITA NEL CUORE
The essay analyzes the historical and legal profiles of the self-preservation: the victim of an attack is an innocent person to be protected, even when, due to the natural and fundamental instinct of the innocent to defend himself. From this point of view, the only viable way is that of recovering the Western legal tradition, betrayed by the criminal ideology that merged into the Rocco code: expanding the boundaries of legitimate defense in a legal framework that does not belong to the legal and philosophical culture of one Liberal rule of law is a false solution, as the principle of subjective law inherent in human nature, even if still the subject of debate in doctrine and jurisprudence, deserves to be carefully examined.

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Sabrina Elia

PRINCIPIO DI PRECAUZIONE E DIRITTO PENALE AMBIENTALE. LUCI ED OMBRE DI UN RAPPORTO ANCORA CONTROVERSO
This article deals with the use of the precautionary principle in criminal law, especially in environmental criminal law. By requiring the adoption of precautionary measures in situations of scientific uncertainty, the precautionary principle fits in where the level of acceptability of the risk has changed over the years, shifting attention from the danger of injury to the “risk of danger” of injury. Considering the inability of classical criminal law to manage the new classes of risk, the essay tackles the expansion of criminal law from new prospects. This is an important premise to demonstrate that the demands for the protection of the environment and for the effectiveness of criminal repression are in danger of changing the patterns of guilt as well as the procedural arrangements and evidence that demonstrate the standard of proof of guilt. Therefore, beyond the jurisprudential and doctrinal interventions, this paper aims to if an effective legislative intervention on the subject is necessary.

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Simone Faiella

LE “ECOMAFIE” TRA ESIGENZE DI TUTELA AMBIENTALE E RISPETTO DEI PRINCIPI DEL SISTEMA PENALE
The term “eco-mafia” indicates a very complex and controversial phenomenon gathering some tricky features such as the “mafia method”, the “organized crime” and “the structure of the companies”, this latter one to identify the organizational element of criminal associations. This paper offers an overview of the environmental crimes giving particular emphasis on the magnitude of such dynamic and illecit activities in order to focus the lights and shadows of the state of the art.

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Anna Berti Suman

VOICING CLAIMS TO GOVERNMENTAL ACCOUNTABILITY: THE CASE OF ENVIRONMENTAL CITIZEN SENSING
Forms of environmental monitoring ‘from below’, so-called ‘citizen sensing’, are manifesting ways of voicing demands for a more accountable environmental risk governance. Potentially, these practices could instil more accountability and transparency in the institutional system, and provide concerned citizens powerful mechanisms for ‘cross-checking’ governmental interventions. This contribution explores the practice under the lens of political sciences, public administration studies, legal doctrine and legislation for illustrating the accountability potential of citizen sensing in theory and in practice. Empirical insights from a number of citizen sensing case studies are also analysed in order to inspect whether and how accountability claims are actually voiced by the participating citizens.

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Sabrina Brizioli

GLI ATTORI DEL SISTEMA DI ACCESS AND BENEFIT-SHARING: CRITICITÀ E PROSPETTIVE A DIECI ANNI DALL’ADOZIONE DEL PROTOCOLLO DI NAGOYA
Ten years have passed since the adoption of the Nagoya Protocol and many studies have been conducted to analize the progress made in achieving the third objective of the Convention on Biological Diversity, namely the fair and equitable sharing of the benefit arising out of the utilization of genetic resources. Despite this, little attention has been put on the interplay of the actors involved (and the way their interests are balanced) in the Access and Benefit-sharing mechanism. This paper investigates the status of the provider State, the prerogatives of the so called «intermediate State» and the role of users. It also focuses on the emerging participation of non-state actors at national level and the involvement of indigenous people and local communities through biocultural protocols. The author underlines the main difficulties in exchanging genetic resources among such a large number of actors and deals with those situations not completely taken into account by the Nagoya Protocol to scrutinize how they impact relevant principles such as State sovereignty over genetic resources, international equity, prior consent and fair benefit-sharing.

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Silvio Pietro Cerri

TRATTAMENTO ILLECITO DEI DATI PERSONALI E RISARCIMENTO DEL DANNO NON PATRIMONIALE
The contribution examines the issue of compensation for non-pecuniary damage in the event of violation of data protection. For years, the majority orientation has led the unlawful processing of personal data to a hypothesis of objective liability, also in light of the explicit reference made by Legislative Decree 196/2003 to art. 2050 of the Italian Civil Code. Therefore, the injured party who complained of the infringement of the non-pecuniary interest had to demonstrate the existence of the damage and the causal link with respect to the illicit treatment, while it was up to the data controller to prove the adoption of every measure suitable to avoid the damage. This scheme is substantially confirmed by art. 82 GDPR, which, on the basis of the accountability principle, charges the data controller with the risk of business. It is therefore believed that civil liability, also in light of the GDPR, must always be framed in the same logic of the general system of articles 2043 and 2059 of the Italian Civil Code.

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Flavia Cristiano

IL REGOLAMENTO UE 679/2016 E I TRASFERIMENTI EXTRA UE DEI DATI PERSONALI NEL CONTESTO UNIVERSITARIO
This work examines the framework of rules related to the transfer of personal data to non-EU countries and international organizations, focusing on the data processing activities carried out by Italian public universities as part of their institutional purposes. A summary of the guarantees applicable to the processing of personal data is proposed, that considers the balance between the rights to be respected and the laws applicable to the university context. This summary also takes into account the consequences of the recent Schrems II ruling of the EU Court of Justice on transfers abroad of personal data processed by entities established in the EU.

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Marco Gambuli

IL RISARCIMENTO DEL DANNO DA ILLECITO TRATTAMENTO DEI DATI PERSONALI
This paper gives a brief overview of the regulation of compensation for damage due to unlawful personal data processing. Starting from the principles adopted before the GDPR, it explores the main critical issues recently emerged in jurisprudential pronouncements, with particular reference to the proof of damage, the use of presumptions and the existence of a minimum threshold of compensable damage.

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Valeria Orabona

IL REGISTRO DELLE ATTIVITÀ DI TRATTAMENTO NELLA P.A.: IL DELICATO RUOLO DEL DPO TRA ACCOUNTABILITY E GESTIONE DELLE RISORSE
The article studies the register of processing activities in the Public Administration and the delicate role of the DPO between accountability and resource management. Particularly, it analyses the data controller and it focuses on the requirements and methods for designating the DPO. A reflection is made on the possible correlation between administrative processes / procedures and data processing activities. The article concludes with an in-depth study on the digitization of the PA and on the potential of the computerized register.

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Simona Sergio

IL TRATTAMENTO DEI DATI PERSONALI NELLE PUBBLICHE AMMINISTRAZIONI
This contribution analyzes the discipline of personal data processing carried out in the public domain. The analysis takes into consideration the impact that the reference discipline on the protection of personal data - Regulation (EU) n. 679/2016 and the internal implementation legislation - has had on the national internal system, particularly in how the entry into force of the GDPR has affected the discipline of administrative procedures incident, as is known, on the principles of transparency of public action and, of confidentiality and protection of personal data and on the necessary balancing operations to be carried out, aim to reduce the physiological tension between public power and private rights.

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Alessandro Billi

LA NATURA GIURIDICA DEGLI SMART CONTRACT
The contribution is aimed at investigating some aspects relating to the innovative tool of smart contracts, based on the IT architecture of the so called blockchain and, in general, on the set of Distributed Ledger Technologies (DLTs). Smart contracts, as self-enforcing agreements, allow to create a negotiation process capable of being carried out without human intervention, in the presence of certain prerequisites (so called algorithms if-then). The smart contract, once programmed and started, executes the instructions indicated in its code, minimizing the risk of any type of tampering, thanks also to the so called enforceability. This legal instrument is perfectly suited to a context in which the parties do not know each other, eliminating the need to establish a relationship of trust, producing the scenario of the so called trustless trust.

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Gestazione per altri e accertamento di stato. Nota a Corte costituzionale, 9 marzo 2021, n. 33 – Pres. Coraggio – Est. Viganò – A.S. e P.F. in proprio e n.q. di genitori di P.B.F. (Avv. A. Saitta) – Pres. Cons. Ministri (Avv. gen. Stato).
Andrea Sassi

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Note minime sul difficile equilibrio tra interesse fiscale e diritto alla privacy del contribuenteCorte Europea dei Diritti dell’Uomo, Sez. IV, 12 gennaio 2021, L.B. c. Ungheria (ric. n. 36345/2016).
Simone Francesco Cociani

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Il titolo di avvocato “specialista”
Giancarlo Savi

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Data Protection and Covid 19: Individual Rights and Public Interests in the time of Coronavirus
Kostanza Tomaino

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Individualismo dello status
Alessia Sperandio

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Modifica delle condizioni di divorzio e affidamento della prole. A proposito di un recente provvedimento del Tribunale di Perugia
Alessandro Marceca

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Recensione a G. Abbritti (a cura di), L’Istituto di Medicina del Lavoro dell’Università degli Studi e dell’Azienda Ospedaliera di Perugia dalle origini ai nostri giorni, Cultura e Salute Editore, Perugia, 2021
Antonio Palazzo

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In memoriam

In memory of Giovanni Barberini and Beniamino Caravita di Toritto.
Antonio Palazzo.

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