Fundo de investimento em direitos creditórios e banco: diagnóstico comparativo entre negócios jurídicos utilizados na coleta e repasse de recursos financeiros e a respectiva regulação

Abstract

The following thesis was developed based on legal-dogmatic investigation accomplished by bibliographic research and analysis of data and regulation laid down by the Brazilian Central Bank (BCB) and the Brazilian Securities and Exchange Commission (CVM), in order to examine technical reasons for different regulatory treatment for banks in comparison with Receivables Investment Funds (FIDC), regarding their collection of financial resources from one client and transfer to another. To execute the proposed analysis, it was necessary to study comparatively 1) the manner both execute such activities, and 2) the regulation on them. The risks offered to clients, the market and the costs supported by the bank and the FIDC in order to move financial resources were also mapped. To optimize the research, the delimitation was as follows: in the case of banks, around the categories of commercial banks and multiple banks with commercial portfolio; in the case of the FIDC, around the multi-cedent and multi-drawer category. The conclusion was that it is justified for different regulation to be applied by the Brazilian Government to control activities of collection and transfer of financial resources performed by banks and the FIDC. The way a bank collects financial resources from popular savings enables the possibility of creation of scriptural money affecting directly the volume of means of payment circulating in the economy, as well as the interdependence between banking entities, which demands stricter state control focused on systemic risk monitoring. On the other hand, the FIDC proved incapable of creating scriptural money and achieving high interdependence levels with other market agents; therefore, their regulation is focused on ensuring symmetry of information among investors and the investment fund. It was noted that a stricter state control over banks entry, maintenance and exit on the market carry a greater absolute cost compared to the costs on the FIDC. Such cost includes necessary expenses to build and maintain administrative and operational structure for risk management. In the case of the banks, these structure demands more complex technical tools and specialist personnel compared to the FIDC and this difference is explained by the lower potential risk caused by the activities of such investment funds. It all indicates this could be a fact that explains the growth of FIDC in these last years and could lead to admit it as a alternative to small banks, though the impacts resulting from this observation still require further empirical investigation.