Criminal compliance e a prevenção da responsabilização penal das pessoas jurídicas pelos crimes previstos na Lei de lavagem de dinheiro

Abstract

This study was carried out with the aim of analyzing if compliance programs prevent companies from being liable for the crimes listed in Law 9.613/1998 in the scope of their organization. Based on the agnostic theory of punishment, it was verified that the sanctions recommended in the Money Laundering Law for gatekeepers, although nominally administrative, are punitive in nature. Then, given the need to safeguard society from collective damage, regulated self-regulation was idealized as a phenomenon capable of preventing business crimes, which can be done through compliance. Next, the erratic criminal liability of the individuals who constitute the company through improper omission is problematized, especially the managers and those responsible for the development of integrity programs and, consequently, compliance with the duties established in the Money Laundering Law. Also, the objections presented on the national and international scene regarding the possibility of criminal liability for companies were examined, especially considering their capacity for action. It was found that the criminal liability of corporations is fundamental in the globalized context and, based on this, it is argued that its implementation should be based on self-responsibility, given that the principle of culpability is fundamental to the constitutional system in force. Therefore, it was concluded that compliance programs have an important role to do in preventing the imputation of criminal liability to legal entities for the commission of the crimes under the Money Laundering Law, but the distortion of their objectives leads to an increase in criminal selectivity and a chain of responsibility. In order to develop the study, the methodology employed consisted of bibliographical review techniques and analysis of case law and regulations.