Criminal compliance como mecanismo de prevenção de responsabilidade por crime de gestão fraudulenta em instituição financeira cooperativa

Abstract

This dissertation is part of the Graduate Program in Business and Business Law at the University of Vale do Rio dos Sinos - UNISINOS, in the research line of Business Law and Regulation. Based on the legal framework of fraudulent management and criminal compliance, the objective of the work is to propose strategies to be observed in the elaboration of criminal compliance norms, which can be used as a tool for the preservation of the responsibility of directors and managers of cooperative financial institution in relation to fraudulent acts committed by third parties. The study uses as a data the documentary analysis, through the qualitative and quantitative examination of 49 judicial decisions handed down by the Federal Supreme Court, Superior Court of Justice and by the five Brazilian Federal Regional Courts, also the study analyzes the institutes of fraudulent management and compliance in the light of the theoretical-doctrinal, legislative and jurisprudential approach, likewise the practical application identified. Such analyzes conclude that there is no consensus among the triad of legislation, doctrine and jurisprudence, in the sense that the legislation points to a limiting role of criminally responsible agents, while the doctrine extends this accountability to other positions – since they have command and management – and jurisprudence does not take into account the specific function of the individual, but his internal responsibility and the behaviors that he has demonstrated. In a complementary way, it addresses the role of compliance programs within financial institutions, concluding that it is a tool capable of directing the responsibility of each act practiced in the business scope, since it contains a structure that allows the understanding of this preventive purpose and that is consistent with it. On the other hand, it shows that the compliance programs adopted – in general – by financial institutions in Brazil do not deal with content related to criminal compliance, and do not serve initially as instruments capable of contributing to the accountability of employees who committed illicit activities criminal proceedings. In addition to all of the aforementioned elements, we come to the establishment of specific strategies that, once observed in the elaboration of criminal compliance rules to be adopted in the compliance program of a cooperative financial institution, allow the creation of an instrument capable of – with greater assertiveness – providing a criminal accountability guideline to the employee who effectively commits actions that constitute fraudulent management, preserving directors, managers and other figures present at the top rank of a credit union of possible unfair accountability.