Criminal Compliance in Brazilian Corporate Criminal Law: A Theoretical Analysis

Abstract

With the establishment of compliance rules, a penal bias known as criminal compliance has emerged. This paper focuses on the institute of criminal compliance, which aims to prevent and control fraud, corruption, money laundering, ethical misconduct, and potential criminal charges against companies (where permitted by applicable legal systems), in order to maintain an integral and transparent image of the internal acts and behaviors of the institution. The research seeks to answer the following question: Does a fully innovative institute, such as criminal compliance, exist in the Brazilian criminal legal system? The objective of the study is to identify the possibility of implementing criminal compliance in Brazilian corporate criminal law, taking into account the current challenges faced by the institute for its effective implementation. The justification for this study is urgent considering the worldwide repudiation of the lack of integrity and ethics in financial institutions, which necessitates the pursuit of effective corporate governance. The hypothesis underlying this research is that organizations, including those in Brazil, are increasingly required to adopt responsible and ethical conduct. The applied methodology was qualitative, based on theoretical and bibliographic research, guided by the phenomenological-hermeneutical method, where pre-understanding, preceding comprehension/interpretation/application, gives meaning to the research results in which the investigator is directly involved. As a conclusion, it is evident that both doctrine and jurisprudence face difficulties in incorporating criminal compliance into Brazilian corporate criminal law. Despite advocating for prevention and subsequent mitigation in legal systems allowing the criminal liability of legal entities, there is a lack of effective criminal laws that recognize this institute in Brazil. Therefore, compliance, through voluntary internal corporate governance practices, is the only aspect applied in the Brazilian legal system. While the premises of criminal compliance remain primarily theoretical, with indirect and discreet practical application in preventing corporate crimes within the Brazilian criminal legal system.