New code provides penalty for company that practices corruption


Source: Valor Econômico (São Paulo) - 04/06/2012

If the National Congress approves the changes that are being discussed for the Penal Code, companies and private agents will have more legal certainty in procedural analyzes of economic crimes, with the detailing of concepts and explanation of conducts subject to criminal classification. The proposal for a new code has a specific title for economic crimes. It will contain chapters referring to crimes against the tax order and Social Security; against the national financial system; money laundering; against intellectual and immaterial property; related to the Bidding Law; illicit enrichment; and bankruptcy. Others, related to human rights and the environment, will also be included.

Dating from 1940, the Penal Code will be completely revised, based on a series of suggestions made by a commission of jurists instituted by the Federal Senate. The intention is to improve the text and fill in the gaps resulting from current behaviors, such as the widespread use of the internet.

“The change will bring more security to the market, it will create a more sense of responsibility and ethics for agents. The preliminary draft updates, in the economic area, crimes that are outdated today ”, says Senate legislative consultant, Tiago Ivo Odon.

Among the innovations that will come in the text, is the criminalization of legal entities that practice acts of corruption against the public administration and also in the private sphere. Today, only individuals can be punished for crimes, with the exception of cases involving environmental issues. In both cases, there are penalties such as fines, suspension of activities and even the closure of the company.

The preliminary project is in the final stage of elaboration. The last Senate meeting of committee members is scheduled for June 11. After that, the rapporteur of the text, the regional attorney for the Republic Luiz Carlos dos Santos Gonçalves will consolidate the suggestions approved during the meetings that took place since the end of 2011. The rapporteur's expectation is that there will be no significant change in the final wording that will be given to the preliminary design.

There was no concern to "harden" or "soften" the legislation, says the prosecutor. “The correct expression is to make it proportional, according to the actual or potential severity of the behavior from which the penalty should be sought. They are already existing texts, but often old ones. The commission's intention was to modernize them ”.

Another change advocated by lawyers, in the legislation related to tax and social security crimes, is the impediment of filing a complaint to the Court if the debtor presents himself in court and makes a kind of security deposit, as a guarantee that he will pay off the debt in the future, or a debt installment agreement. Today, the jurisprudence of the higher courts already allows for criminal exclusion, if the debtor installs the debt or settles it before the complaint is offered.

For the rapporteur, the most emblematic change, however, is the inclusion of crimes against the financial system in the text. What is proposed is to use what is already in the law in force on these cases, of 1986, with reformulations. He recalls that the current legislation that criminalizes these conducts was passed after the scandal known as Coroa-Brastel. At the time, with the failure of a broker, thousands of people were injured.

“We have the phenomenon of emergency legislation in Brazil. A serious criminal case takes place, and the following week, a law comes along. They are usually laws that do not go through in-depth reflection. This is a law that has been controversial over these twenty years, ”he says. The new code, explains the rapporteur, will explain different penalties for conduct of singular fraudulent management (one case), period (recurrent practice) and reckless management.

This latter conduct is defined as credit operations that represent a concentration of risk not permitted by the rules of the national financial system. If the rules are not foreseen, operations with risk in sufficient volume to cause the institution to collapse in the event of default will be characterized.

A penal type that will be incorporated into the code, within the conducts of crimes against the financial system, is the use of privileged information by people who work in stock exchanges, with access to internal data about a company's investments - the so-called “insider trading ”. Today this type of conduct is already provided for in the Brazilian Corporation Law with a penalty of one to five years in prison, plus a fine of up to three times the amount of the unlawful advantage obtained as a result of the crime. According to the draft text, the minimum penalty is increased by one year. The maximum penalty and fine are maintained as in current legislation.

Some suggestions made by the commission of lawyers are similar to proposals under analysis by deputies and senators. Tomorrow, for example, the Senate should approve a set of measures to improve the fight against money laundering.

The final text is due to be presented to senators later this month, with a symbolic vote by the commission of lawyers. Then, the work will be forwarded to the Senate President, José Sarney (PMDB-AP). The Constitution, Justice and Citizenship Commission (CCJ) will analyze the proposal and join all projects related to the subject under examination by Congress.