09 Mar fraud and negligence

Traditionally the distinction between fraud and guilt rests in the element of will.
The intentional crime is the desired one (according to intention); the negligent crime is the unwanted one (against the intention).
It is also specified that in guilt the event is never wanted, if anything only expected (and not always, because in cases of so-called unconscious guilt, in reality, the event is not even foreseen by the agent).
Intentional intent and negligence would therefore be symmetrical concepts: “guilt is the exact negative symmetric of fraud” writes Mantovani.
A further distinction arises in relation to guilt. That is, the intent would be the most serious form of guilty will, in the sense that it would be a psychological element of greater gravity. If guilt is a judgment of reproach, it was said, this is maximum in intentional crime, while it is of lesser intensity in negligent crime.
Guilt is therefore the least serious form of guilt, in the sense that malice represents a more serious criminal intent, guilt, on the other hand, is a psychological attitude that presents a lesser social negative value.
For a long time the role of negligent crime in the penal system was therefore relegated to suborder with respect to fraud, not only for the reasons just mentioned, but also because the number of negligent crimes was certainly less significant than that of intentional crimes.
Currently this doctrinal attitude has changed, thanks to various factors and some even consider the figure of negligent crime more important and more serious than that of intentional crime.
Currently the traditional orientation, absolutely prevalent and unchallenged until about 30 Years ago, has been questioned, to the point of producing a real change in both doctrinal and jurisprudential attitudes; this change in attitude was determined by various factors, which we will analyze in the next paragraphs, so incisive that currently some even consider the figure of the negligent crime more important and more serious than that of the intentional crime.
On the one hand there is a reason that we could define as naturalistic, in the sense that the number of negligent crimes has increased dramatically, because current society is so complex that the opportunities for possible verification of negligent crimes are now very frequent.
Think about the number of cars on the road, today so high that the possibility of causing an accident is very high, despite all the good will to avoid it; then think about the technological progress, which make the risk of crime very frequent (environmental or otherwise) connected to the use of sophisticated and modern machinery.
Think about the sector of professional responsibility, medical in particular. This is a very frequent type of crime, in which the figure of negligent crime dominates unchallenged.
For this reason it is not wrong to say that in today's society the phenomenon of negligent crime is more important than that of intentional crime.
Furthermore, as some authors rightly point out, it is wrong to think that negligent crime represents a less serious form of crime than intentional crime and therefore punishable in a more lenient way. This is a classic point of view, but what, as Mantovani points out, takes little account of the dangers of certain behaviors: because in the negligent crime, if the guilt is less (in the sense that the less the will to cause the event) the social danger of the author is not necessarily less. The one who always runs at very high speed on city streets, continually endangering the lives of those he encounters, he is no less dangerous to society than someone who kills a person out of revenge, or perhaps to get rid of a hated lover. Both subjects are dangerous and constitute, to use Mantovani's expression, a kind of always triggered bomb that can explode against anyone. Some negligent crimes are therefore even much more serious than the corresponding intentional crime; the one who runs over the exterminator of his family, killing him, sometimes represents a minor danger to society, and must consider himself less abject from the moral point of view than he who has the habit of speeding 200 per hour through the streets of the city, and in his life he has already caused several negligent fatal accidents.
Then there is a general theoretical reason, and therefore mainly attributable to the attitude of the doctrine. Many authors, indeed, are now inclined to consider guilt not a subjective element of a lower degree than malice, but a requirement suitable for delineating a type of crime in its own right.
The negligent crime, indeed, with respect to the intentional crime, it would present completely autonomous and peculiar structural elements, which would justify a separate treatment of the two types of crime; so that, rather than examining guilt within the subjective element, it is examined within the objective element, or we prefer to identify an autonomous system for intentional crime and one for negligent crime, which is treated separately (and within the two categories the subcategories of the intentional crime of action and the intentional crime of omission are then identified, as well as the crime of negligent action and the crime of negligent omission).
At this point, But, it is necessary to clarify what these elements of peculiarity consist of with respect to the intentional crime, and because some authors tend not to consider guilt as a subjective requirement of the crime.
The point is that, while the intent has a psychological content (in the sense that in some way it is linked to the will, and therefore to the internal attitude of the criminal) guilt often does not have this content; consisting in the violation of a rule (especially in cases of specific fault and unconscious fault) guilt cannot be identified by reconstructing the subject's will, but starting from an objective reality or, we could say, From one regulatory assessment. In short, while in malice the judge investigates how much the subject wanted the event, in the case of guilt the judge evaluates how much the subject has deviated from the rule of conduct; in the first case he carries out a psychological evaluation, in the second case normative; which means that in the first case we are allowed to talk about “psychological element” of the crime, while in the second case it is an objective element. In fact, some scholars propose to study guilt within the objective element, and malice in the subjective element.
However, the prevailing doctrine considers it simpler to deal with the topic of guilt within the subjective element, also because the autonomous elements of the negligent crime would be very few, and in any case they play a completely marginal role which does not justify separate treatment. On the other hand, if it were true that the negligent crime represents an autonomous form of crime some parts of criminal law, especially that relating to individual crimes, should be treated separately, which never happens.
The final blow to the traditional distinction between intent and negligence was given by a certain doctrine (Pagliaro) highlighting that it is not the will that distinguishes intent from guilt; many malicious actions are in fact conduct in which it is impossible to find a true will, exactly as happens in negligent ones. Think about crimes of passion, and to cases of possible fraud. Unlike, there are negligent conduct in which a foreseen and desired core can be recognised. These are cases of improper negligence, that is:

• factual error regarding the existence of a justifying cause;
• negligent excess in justification cases;
• mistake of fact caused by fault;
• in the end, in conscious guilt, which borders on possible malice, there is at least a core of the case that is intentional (Pagliaro).

Once the distinction between fraud and negligence based on guilt and will has collapsed, the doctrine went in search of another discretionary criterion.
How then does negligence differ from malice?
In an attempt to look for a difference between the two forms of subjective element, alternative paths have been explored.
For the so-called psychodynamic theories, both malice and guilt have a common characteristic which does not consist of conscience and will, but in not having curbed their antisocial impulses.
For Pagliaro, which brings his formal theory of criminal law and crime to a logical and coherent conclusion, the difference rests instead on the different typing technique adopted in legal cases.
In fraud, the legislator requires that a given conduct respects the typical case, both from an objective and subjective point of view; in negligence the legislator requires the same conditions as in fraud, but with the difference that the subjective aspect does not consist in the will to the typical action, but in the will of the conduct in violation of precautionary rules.