Economic Criminal Law is aimed at protecting the interests of economic order. It arises as a reaction to Brazilian State to the social risks arising from the exploitation of economic activities, creating mechanisms of accountability for legal entities, its partners and managers.
Although the liability of the legal entity itself in Brazil is only possible in the Brazilian legal system, in the case of environmental crimes, the partners and managers of partnership are subject to many responsibilities in the position of guarantors of the company’s decisions.
The conducts that can be practiced in the business routine and may affect performance of economic criminal law can are countless, having as examples crimes against the tax order, the Brazilian national financial system, capital market, consumer relations, environment, bidding, bankruptcy, money laundering, among others.
RMSA offers in multidisciplinary character a designed and compromised consultancy with legal ethics, focused on legal-criminal solutions in the scope of business relationships, through the preparation of opinions with presentations of legal defensive theories involving preexisting and future matters that may arise during a criminal prosecution.
The advisory activity also covers: prevention of criminally typified conduct, by assessing the limits of the performance of business activity; the implementation of criminal compliance, preparing companies to offer internal programs and codes of conduct.
Our service portfolio includes:
Consultations and opinions about the Economic Criminal matter
Monitoring of investigative procedures and criminal proceedings
Preventive advise and implantation of criminal compliance projects
Legislative and jurisprudential updating in the criminal field for clients
The Brazilian scenario of high tea burden and little return on services for the community, discourages taxpayers to fulfill their tax obligations correctly.
Furthermore, the changes in the Brazilian tax legislation are constant, impacting on the company’s fiscal operationalizations, requiring an enormous concentration of human and material resources, making it difficult to understand the correct way to fulfill rap obligations.
Thus, the enormous risk of conduct that constitutes crime against the tax order within the acts of business management are undeniable.
The development of the Capital Market occurred in large scale and very quickly with globalization, generating technological advances that are directly reflected in the global economic growth.
In view of the changer that occurred within economic relationships, there was a need for new means of control for new means of executing protection and monitoring of capital flows between countries, such as the legal protection of the market through regulation.
Within the scope of criminal law, conducts such as manipulation of the capital market, misuse of privileged information, irregular exercise of position, profession, activity or function as a means of social control to ensure transparency, security and equal treatment among investors, are now criminalized.
Safety and transparency of the financial system is an international requirement, above all, before the transnational financial operations, which demand strict enforcement of the rules imposed, through official control agencies.
The financial market has as its basic premise to offer a transparent and safe structure, seeking equality between investors in a financial operation. With greater freedom of access to the financial market, the greater the need for its regulation, with the possibility of imposing criminal sanctions with the classification of criminal conducts, such as the case of “white collar” crimes, with greater relevance for the crime of evasion foreign exchange.
The Brazilian Consumer Protection Code is a public policy of social interest that prevails over other rules that it conflicts with. It seeks to regulate the consumer relationships by imposing rules of a civil, administrative, criminal and procedural nature, recognizing the consumer’s vulnerability and their need for protection.
In terms of consumer criminal law, it protects the figure of the consumer in the consumer market relations, preventing: behaviors that go against collective interests, and the abuse of economic power; protecting the conditions in which consumer relations are established in the face of consumer vulnerability.
The bidding process aims to preserve the collective needs in the process of contracting by the public administration for private services and activities. Privileges and illegal advantages of any nature, characterize a dysfunction, whose deviation from the purpose of bidding procedures, will be sanctioned by both Brazilian Administrative Law as Economic Criminal Law.
Thus, there must occur the correct legal monitoring of the company, in order to preserve its contracts legality that eventually may be signed with Brazilian public administration.
Economic internationalization brought speed in the international transactions, but perfected the means of money laundering, a typical phenomenon of post-industrial risk society. In this context, it favored the development of the global criminal market that occurs throughout society.
Even though it is an old conduct, money laundering crime gained greater relevance in the legal scenario with the expansion of transnational organized crime, caused by the globalization process.
The absence of a financial intermediation makes it easier for companies to create offshore branches in tax havens, ghost or shell companies. Operational difficulties for businesses, completion between financial establishments, communications technology and transfers are some of the aspects that contributed to expansion and technical improvement of money laundering techniques. Which have been adapting to market liberalization and deregulation.
Therefore, it is necessary to have legal multidisciplinary support with Criminal Economic Law so that economic transactions present the lawfulness of the company’s assets and capital.
Is important to observe that the list of criminal conducts that may be practiced in the business sphere is not limited to those already mentioned.
Criminal Economic Law also protects other legal assets, such as protection of: work relations, social security system, environment, legality of the bankruptcy process and all other behaviors that may violate the maintenance of the Brazilian economic order in a broad sense.
After Brazil became a signatory to international treaties that have as purpose the combat of corruption, the relationships between citizens and the Brazilian State has generated mechanisms of functional cooperation, imposing new patterns of business management, such as the duty to help the Brazilian State in preventing and repressing criminal conducts.
For this reason, the companies are being forced to implement internal regulatory compliance structures within their organization to prevent fraud.
The Brazilian criminal legal system allows the responsibility of a legal entity in cases of environmental crimes, according to the Brazilian Federal Constitution in article 225. However, individuals, as partners, administrators and managers, can be held criminally responsible for the acts practiced by the company, and in this case, not only in environmental matters.
In this context, the criminal compliance program is inserted, in the search for an internal business organization aimed at complying with legal norms, through imposition of a policy of values, codes, rules and procedures guided by the prevention of criminal offenses and mainly in the fight against corruption within companies.
Thus, the definition of a clear and determined internal structure, describing in an objective manner the duties and responsibilities of each one of the company’s managers and workers is fundamental for the business’s transparency and eventual guilt assessment of the company’s internal agents.
But, above all, the implementation of an effective criminal compliance program, demonstrates that the company is in conformity with the general legislation. Acts in prevention of risks of engaging in criminal conducts, reflecting directly to the exclusion of guilt of the legal entity, as well as serve as an instrument of defense of its own leaders for the purpose of mitigating the imposed sanctions.