Penal Code reform strengthens protection of intellectual property

Bill, which is due to be voted on in the coming months, also includes corruption in the category of heinous crimes
Bill, which is due to be voted on in the coming months, also includes corruption in the category of heinous crimes

The draft reform of the Penal Code (PLS 236/2012) should be voted on this year. This is expected to happen in the coming months, because on December 10, Senator Vital do Rêgo (PMDB-PB), rapporteur of the project, presented the substitute to the project to the Senate Constitution and Justice Commission (CCJ).

Some changes foreseen in the new code have strong synergy with the work of the Brazilian Institute of Ethics in Competition - ETCO. The list of heinous crimes, for example, must be expanded, including acts of corruption among them. Intellectual property should also be better protected, through art. 178, § 2, item I, which criminalizes the conduct of filming audiovisual work without authorization - one of the most common forms of piracy today.

Still in relation to intellectual property, there was a proposal to change art. 184, but it was not accepted. Thus, the criminal action, in the crime of violation of copyright, remains public and unconditional, and not private, as proposed. Usually, private criminal action is used for crimes that affect the victim's privacy and not society, which does not apply in the case of copyright.

The new code also increases the punishment in the case of slave labor and animal abuse and makes the progression of sentences more rigorous. Today, primary convicts can face half-open prison terms after serving one-sixth of their sentence. The term must change to a minimum of a quarter of the penalty. The text also simplifies processes and encourages consensual conflict resolution, in order to relieve the Judiciary.

Also in December, after five years of processing, the Senate approved the draft of the new Code of Civil Procedure. As in the Penal Code, incentives for conciliation are foreseen, among other measures to speed up the judgment of actions across the country.

Petrobras indicates that it may include losses with corruption in balance sheet

petrobrasPetrobras indicated, in a statement sent to the market on Wednesday, that the developments of Operation Lava Jato may imply the "recognition of losses" in its balance sheet for the third quarter, which should be released next Tuesday. The initial forecast for the presentation of the financial results was November, but had to be postponed twice due to allegations of corruption, which includes overpricing of the oil company's contracts and assets.

Source: (21/01)

To read the full story, click here




Transparency International report points out that Brazil is in 69th place among 175 countries and territories in terms of perceived corruption. The nations seen as the most honest are Denmark (1st) and New Zealand (2nd). Brazil improved its position in relation to 2013, when it came in 72nd place and shares the current position with Bulgaria, Greece, Italy, Romania, Senegal and Swaziland.

Corruption ranking places Brazil in 72nd place among 177 countries

Report by the organization Transparency International on the perception of corruption around the world released this Tuesday (3) points out that Brazil is the 72nd place in the ranking among the 177 countries analyzed, a modest position even among the various countries in the Americas.

Source: G1 (3/12)

To read the full story, click here.

Contractors from the Petrobras scandal are considering making a leniency agreement

Contractors involved in the Petrobras scandal are already considering making a leniency deal, admitting irregularities in exchange for softer sentences for their executives.

Under this agreement, the contractors would undertake to return the money diverted from the state company to pay bribes to various political parties - names of PT, PMDB, PP and PSDB have already been mentioned. Before advancing the idea, companies wait for the definition, first of all, of the magistrate who will handle the case.

They have already submitted requests for Judge Sergio Moro, from Paraná, to stop commanding the process. They claim that the irregularities did not occur in the state, but in Rio and SP. The leniency agreement would also depend on a major “sewing” involving the Federal Police and the Public Ministry.

Owners and majority shareholders of some of the contractors fear that some of their directors, if pressed, will decide, on their own, to award a prize, following the example of Paulo Roberto Costa, former director of Petrobras. With the leniency agreement, they would maintain at least some control over the process. Source: - Mônica Bergamo - 21/10

Corruption as an obstacle to development

Corruption news is becoming more and more constant in Brazil, causing disgust and revolt among the Brazilian people. Its impact goes far beyond the headlines and generates a large and still little-known effect on the country's economy.

In the book Corrupção - Barrier to the Development of Brazil, journalist Oscar Pilagallo shows the path taken by society to reach the current stage and shows what must be done to change the national political scenario. With both a historical and prospective approach, the book treats corruption primarily as an obstacle to economic development because it subtracts resources from public policies, causes distortions in the business environment and strengthens the culture of leniency with transgressions.

The work was built from the compilation of lectures presented at the seminar “The Impact of Corruption on Development”, conducted by ETCO, in partnership with the Valor Econômico newspaper, in August 2012, in São Paulo, which brought together representatives from various sectors Brazilian economy and society around the theme.

Seminar held by ETCO and Valor discusses Anti-Corruption Law

After the “trawl” of the Clean Record Law, which put hundreds of suspicious applications in limbo, the country now has the Clean Company Law (or Anti-Corruption Law). In effect since January, Law 12.846 holds companies and their employees accountable for committing acts against the public administration. With the legislation, the State wants to punish the corrupting agent and also the company that allows itself to be corrupted. With this, it expects Brazil to leave the uncomfortable position of 72 in the ranking of corruption in a global list of 180 countries. The new law provides for offenders punishments that can reach R $ 60 million or 20% of revenues, without exempting them from repairing losses to public coffers.

First of all, the purpose of the law is inhibiting and educational. More than that, the law aims to reward “clean” companies with better competitive conditions. "The law has the power to equalize the conditions of competitiveness among companies, making the market reward those who invest in ethics, integrity and efficiency," said Sérgio Nogueira Seabra, secretary of Transparency and Corruption Prevention. “When creating equal competition based on efficiency, the company, the citizen and the government benefit. It is a game where everyone wins ”, commented Seabra, one of the speakers at the seminar held by ETCO and Valor Econômico newspaper“ The new Anti-Corruption Law and its impacts on companies ”, on August 25, in São Paulo.

"This is a law designed to really change the level of the business environment in Brazil," said Jorge Hage, Minister of State Chief of the Comptroller General of the Union, who also participated in the event. The minister, however, sees two obstacles. One of them is the “necessary reform to speed up the judicial process, both civil and criminal, so that the processes do not take 10 to 20 years”. The other is “the abolition of corporate financing for political campaigns, which, by the way, are the two major goals that lie ahead”.

For the minister, the Clean Company Law, as he prefers to call the Anti-Corruption Law, is another milestone in a fight that started a decade ago, with “the portals of transparency, with the law of access to information, with the institution of the corregidorias system ”. These mechanisms, Hage enumerated, "removed 4.016 corrupt agents from the ranks of the federal administration, prevented 3.866 companies from participating in tenders and barred 2.690 NGOs from receiving agreements".

For the executive president of the Brazilian Institute of Ethics in Competition (Etco), Evandro Guimarães, companies have an important role in fighting corruption. “Each company must have its own internal committee for prevention of integrity.” According to him, "in Brazil, tax evasion, smuggling, piracy, adulteration are equivalent to a Gross Domestic Product (GDP) of the countries of Latin America". "The greatest asset of a nation is the internal market that has to be preserved and we cannot spare any effort to make companies participate in this anti-corruption movement," he said.

Mario Vinícius Claussen Spinelli, general controller of the municipality of São Paulo, defends the thesis that “it is necessary to change the promiscuity relationship between the public and private sectors in Brazil”. He suggested that the country adopt international models that hold corruption networks accountable. According to Spinelli, Brazil is one of the few developing countries that did not have an anti-corruption law. In the city of São Paulo, the results are illustrative. For example, just last month, the collection of ISS Habite-se increased 74%. The actions led to a corruption scheme that involved more than 400 companies and had been operating for a decade. Of the total - says Spinelli -, "only five of them sought the controllership to collaborate with the investigation and only one of them of their own free will".

Source: Online Value

Gustavo Hungaro Presentation

Presentation Jorge Hage

Presentation Mario Spinelli

Presentation by Sérgio Seabra

Presentation Gabriela Freitas

Read also Lawyers identify impacts for companies 

Lawyers identify impacts for companies

The new Anti-Corruption Law can be viewed in two ways, according to lawyers. One is absolutely positive. “The law elevates the country. It is worth remembering that Brazil had made an international commitment to have a law of this nature [in the late 90s, it was a signatory to the OECD Anti-Bribery Convention], ”said Leonardo Machado, partner at Machado, Meyer, Sendacz and Opice and a seminar debater on the New Anti-Corruption Law, promoted by Valor and ETCO - Brazilian Institute of Ethics in Competition.

The other way is negative. The new law creates risks for companies because it raises a series of doubts and, therefore, legal uncertainty. One of the problems results from the coexistence of other laws with similar objectives, such as the one governing tenders. “[In this scenario], what we call in law 'bis in idem' can happen, that is, a company is at risk of being double or triple punished. The multiplicity of laws also creates another problem, which is that of the multiplicity of actors, ”said Machado. Thus, in addition to the States and the Union, more than 5.500 mayors can sue a company.

An innovation of Brazilian law is the adoption of strict liability. This means that the company involved in the corruption will be penalized regardless of the existence of intent or guilt. "In criminal law, the central point is that there is no sanction without deception or guilt," said Isabel Franco, partner at Koury Lopes Advogados. The same happens in the FCPA, where the so-called subjective responsibility prevails. Another novelty, according to Isabel, is the fact that the company is liable for an illegal act carried out on its behalf by anyone. “It may not be the manager of the company who ordered the wrongdoing. It could be a third party, a lawyer, a dispatcher, ”he said.

In order to avoid the possibility of the company being called as solidarity in the illegal act, lawyer Shin Jae Kim, responsible for the compliance area and a member of the Management Committee of TozziniFreire Advogados, recommends triggering “red alerts” with suspicious partners. "It's what we call 'red flags'," said Shin.

One point that experts hope for an improvement is regarding leniency agreements. In this type of agreement, whoever is involved in the infraction agrees to collaborate in the investigation, presenting evidence that contributes to the elucidation of the case and the discovery of the culprits. Law 12.846 does not mention immunity for individuals who collaborate and decide to enter into such agreements. “The law has several technical points to be improved. This is one of them, ”said Machado.

Another problem pointed out by Leonardo Machado is in the nickname that the new law won. A company that gets sued will receive the stigma of being corrupt, he says. "In this sense, the law can serve as an additional pressure mechanism to be used by non-judgmental administrators," he said. In his presentation during the seminar, the general controller of the municipality of São Paulo, Mario Vinicius Spinelli, made a similar reflection. Jorge Hage, Minister of State in charge of the Federal Internal Affairs Department, in turn, called the legislation the Clean Company Law.

Source: Online Value