A suspensão da atividade de natureza econômica ou financeira como medida cautelar imposta à empresa em razão da conduta de seus representantes: afetação da pessoa jurídica pelo processo penal e a importância da prevenção de riscos por meio do criminal compliance

Abstract

In Criminal Procedure there are precautionary measures that have several functions. The security precautionary measure called real or patrimonial is divided into three types, namely: kidnapping, legal mortgage, and foreclosure. These measures are intended to preserve the movable or immovable property of the individual or legal entity to compensate the victim, repair the damage caused or prevent the illicit enrichment of the agent, since such assets may originate from the criminal practice or have been acquired by the proceeds from the crime. Personal precautionary measures, on the other hand, are aimed at the person of the accused, and may correspond to procedural arrest or a measure other than imprisonment. Among the various precautionary measures of the prison is the suspension of economic or financial activity. The Superior Court of Justice and the Federal Regional Courts, in judgments that do not sufficiently deepen the theme, began to understand that the personal precautionary measure of suspension of the economic or financial activity of the active subject of the crime can be applied to the legal entity, even if to it imprisonment is not imposed and that it does not even participate in the criminal proceedings. These interpretations, in their entirety, also do not analyze the adequacy, proportionality and necessity of the measures they impose on the partners, much less on the company, as in certain situations they violate the free exercise of economic activity, bringing economic impact to the company and to the very people who depend on it. Thus, it is necessary to preserve the business society, presenting itself as an important instrument, Criminal Compliance, as a measure of prevention and mitigation of criminal risks related to business activity.