Presented on April 24 by Senator Augusta Brito (PT/CE), Bill 2.091/23 (PL 2.091/23) introduces five new criminal types in Law 6.385/76 (Capital Markets Act) aiming at fighting capital markets frauds.
According to the justification contained in the bill's text, the attempt to create new criminal types is motivated by the lack of "specific offenses" and "enforcement" of the existing regulatory provisions.
Also, according to the justification, a recent situation involving a retail company would have occurred for two main reasons:
- concealment of information to analysts, investors, audit firms and the Brazilian Securities and Exchange Commission (CVM); and
- repeated failures by directors, managers, officers, executives, board members and independent auditors to fulfill their duties.
The goal of PL 2.091/23, therefore, would be to insert in the Brazilian criminal legislation adequate mechanisms to punish actions and omissions and to introduce duties for agents with management positions in capital markets.
The proposal is to include eight new articles (articles 27-F to 27-M) in the Capital Markets Act, to introduce the following crimes:
- Inducement to error in the capital market
"Art. 27-F: To induce or maintain in error an investor, shareholder or competent government department, regarding the operation or financial, accounting or equity situation of the company:
Penalty - imprisonment, from 1 (one) to 4 (four) years, and fine."
The conduct punishable will be defrauding and acting to give the investor or the regulatory agencies a misleading view regarding the company's operational or financial situation. The legislator's idea is that criminalization would contribute both for inspection purposes and to ensure investor protection, considering the principle of publicity of publicly traded companies.
- Accounting fraud
"Art. 27-G Fraud in accounting or auditing, inserting non-existent operations, inaccurate data or not including operations effectively carried out:
Penalty - imprisonment, 2 (two) to 6 (six) years, and fine."
Similarly to the previous crime, conducts that falsify the true situation of the company, with the inclusion of false or inaccurate information about accounting and financial operations, are criminalized. To incur in this crime it would not be enough to present erroneous data, it would also be necessary the specific intention of defrauding the company's accounting or auditing.
- Improper Influence
"Art. 27-H. Exerting improper influence on audits, by means of coercion, manipulation, fraud or by any other means:
Penalty - imprisonment, from 1 (one) to 4 (four) years, and fine."
Under this crime, the conduct of coercion, fraud, or manipulation that may cause deviation in audits conducted to verify the veracity of accounting and financial statements would be criminalized. Again, not only company managers can be held responsible for this provision, but there is also the possibility of punishing auditors.
- Ideological falsehood in manifestation
"Article 27-I. Omitting information or providing it falsely or differently than it should be provided to alter the truth about a fact that is legally or economically relevant for the purposes of this Law:
Penalty - imprisonment, from 1 (one) to 5 (five) years, and fine."
According to this crime, the falsification or omission of information that must be provided by the company would be criminalized, provided that it deals with an economic or legally relevant fact. Thus, the omission or falsification of information that must be disclosed in communications to the market, for example, would be prohibited. This is a specific figure of the crime of misrepresentation in which, in addition to the criminally relevant omission or misrepresentation, it is also necessary to have the specific intention of altering the truth of the facts covered by the Capital Market Act.
- Unfaithful administration
"Art. 27-J. Damaging the interests of shareholders or investors by not diligently performing the duties imposed by law:
Penalty - imprisonment, from 2 (two) to 6 (six) years, and fine.
Sole Paragraph. If the crime arises from negligence:
Penalty - imprisonment, from 1 (one) to 3 (three) years, and fine."
With this crime, directors and managers of companies that do not fulfill their duties of care, diligence, information, suitability, technical qualification, financial capacity, among others, causing damage to shareholders and investors, may be criminally liable. The failure to comply with these various duties may occur both intentionally, with the aim of harming shareholders and investors, and by negligence, carelessness and imprudence.
In addition to the crimes, PL 2.091/23 expressly lists, in article 27-K, the subjects that have the legal duty to act, to the limit of their responsibility, in case they identify the conduct typified in the previous articles, they are:
- directors (de facto or de jure);
- independent auditors; and
- consultants and securities analysts
Article 27-L, on the other hand, provides for increased penalties (from half to double) for the conduct typified in the PL if they have severe effects, such as:
- shaking of confidence in the national financial system;
- number of victims; and
- value of the undue advantage or loss suffered by the victims.
In cases of recidivism, the penalty may be applied up to three times.
Finally, article 27-M determines the effects of a conviction for any of the crimes described above:
- the inability to exercise a business activity;
- the impediment to holding a position or function in a board of directors, fiscal council, executive board, or management; and
- the impossibility to manage a company by mandate or business management.
These effects must be presented in the condemnatory sentence and will be communicated to the Public Registry of Mercantile Companies.
As is the guiding principle of criminal law, which is expressly stated in PL 2.091/23, not only those responsible for the management of companies may be held criminally liable, but also any third party that contributes to the practice of the conduct described in the criminal types mentioned, such as independent auditors, consultants, and securities analysts.
It is also noted that the proposed crimes are broad and require complementation by concepts provided in other rules, as is common in the so-called "white-collar" crimes. The crimes described in articles 27-I, 27-J and 27-M, for example, make reference to duties or parameters regulated not only by the Capital Market Act, but also by rules and resolutions of other bodies, such as the CVM.
There are also many applicable punishments, considering that there is already the possibility of civil and administrative liability. The crimes provide for sanctions that present a very extensive variation. In case of conviction for the conduct typified in PL 2.091/23, there will be not only the imposition of a criminal fine but also restrictive penalties that can be increased up to three times, in addition to disqualification or impediment to exercise a position or function in a board of directors for an indefinite period.