Gestão fraudulenta em instituições financeiras: ponderações acerca da tutela estatal em relação ao crime contra o sistema financeiro nacional

• Autor(a) principal: Silva Filho, Cleoman Fernandes da
• Data de Publicação: 2017
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações do Mackenzie
• Texto Completo: http://dspace.mackenzie.br/handle/10899/24024
• topic: gestão fraudulenta; instituição financeira; crime contra o sistema financeiro nacional; crime de colarinho branco; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO PENAL

Recent Brazilian and World History both demonstrate the pressing and continuous need for regulation of the financial system, so that economical crisis of world proportions arising from irregular performance of financial institutions – as it was possible to observe back in 2008, with subprime tittle loans trading – wreak havoc in investor’s assets and equity, the health of the financial Market and even the entire economy of diverse countries. In this matter, this essay analyses the crime of fraudulent management in a financial institution, according to Brazilian Federal Law number 7.492/1996, with the main goal to comprehend the state position in order to counteract this specific crime, particularly case-law rulings towards controversies and discussions that span through the nature of this criminal offense. The research aims, therefore, to analyse all Brazilian Federal Courts rulings between 2015 and 2016. In this opportunity it will be weighed the diverse positioning in the judgements around the matter in a necessary collation about the opinion expressed in the Brazilian Superior Court of Justice’s and Brazilian Supreme Court’s judicial decisions. This comparison will allow a clear inference of Brazilian Federal Judiciary opinion about this criminal offense. Among the various controversial aspects that overpass the above referred crime, it is possible to list: the configuration or not, of habituality of fraud in management to consummate the criminal offense; the possibility, or not, of low level corporative managers and non management employees be framed in the above criminal offense; third party aside from corporate management of a financial institution be allowed, or not, to be considered an active agent of the criminal offense; the occurrence, or not, of concurrent offences in fraudulent management with other crimes dictated in the Brazilian Law 7.492/1986, considering the conceptiual amplitude of the crime and few other associated elementary aspects of the crime; furthermore the limits of interpretative abrangence over the nature of the financial institution and other corporations treated alike. The proposed analysis will also be able to verify if indicted managers of this particular criminal offense are being convicted in the judicial scope and the nature of the sentences handed out. Transvesally to the jurisditial analysis, it will be observed a few aspects and results related to the monitoring in the administrative sphere by the Brazilian National Central Bank. The raised statistics of the administrative field suggest that State effort in combatting and punishing irregularities in Brasilian National Financial System are not sufficient to minimize irregularities in this specific sector. Regarding the inferences in the jurisdictional analysis, it will be noted that doctrine divergencies that envolve the criminal offense persist in the perspective that have been ascribed by Brazilian Federal Courts, Brazilian Superior Court of Justice and Brazilian Supreme Court.