As barreiras à entrada no mercado de crédito e o risco como justificativa para o atual desenho regulatório em face do acronismo da noção de instituição financeira

Abstract

Since it began to control the entry of agents into the credit market, the Brazil has adopted different criteria. Sometimes it allowed the government of some, as in the case of those who were willing to carry out the typical activities of a bank, sometimes exempting others from it, it was the situation of the credit, investment and financing society, which was initially able to act without having to observe such a requirement. Lei n. 4.595/1964, created a broad suggestion of control over entry into the credit market by defining a financial institution – instituição financeira (IF) as a legal entity to collect, invest and intermediate financial resources, guard bonds and securities, for whose exercise it began to require the prior permission of the Banco Central do Brasil (BCB) and whose qualification it nominally and expressly attributed to a list of agents, among which the bank and that company were included. For criminal purposes, Lei n. 7.492/1986 improved the definition of IF, expressing the need for the cumulative practice of those four acts to characterize it. Complementary Law n. 105/2001 qualified several institutions as financial institutions in order to oblige them to ensure bank secrecy for clients of the Sistema Financeiro Nacional (SFN). The variety of criteria was expanded by Lei n. 12.865/2013, when creating the instituição de pagamento (IP), initially classified into three types by the revoked Circular of the Banco Central do Brasil (BCB) n. 3.683/2013, issuer of electronic money, postpaid payment instrument and accreditor of these means of payment. A figure very close to the IF, the IPs began to compete with it, including offering specific types of credit, with no control at market entry, since they should only ask for authorization to remain in it when they reach a certain volume of business or move a specific number of financial resources, whose level was changed several times. In 2018, the BCB and the Conselho Monetário Nacional (CMN), through Resolução n. 4.656/expanded the list of institutions nominally qualified as IFs. For its creation, prior authorization must be obtained from the BCB: the Sociedade de Empréstimo entre Pessoas (SEP), which collects funds from clients to lend to others on their behalf, and the Sociedade de Crédito Direto (SCD), qualified to offer credit only with its own capital, both limited to operating exclusively via electronic platforms (internet). In 2019, Lei Complementar n.167/2019, again waived the requirement for prior authorization from the BCB for the constitution of the Empresa Simples de Crédito (ESC), intended to provide loans, financing and discounts, provided that certain limits are observed - for example, the territorial (municipality of its headquarter), quantitative (value of share capital), qualitative (microentrepreneurs) and formal (registration of contracts in a registering entity authorized by the BCB or the Comissão de Valores Mobiliários (CVM). Returning to innovate in relation to payment institutions, in 2021, Resolução BCB n. 80 created the four types of IP – the initiator of businesses intended for the settlement of payments and changing the BCB's authorization requirements, now requires it before the entry into the market of this new type of IP and electronic money issuers. In this context where the definition of IF ceases to be the central method used in Brazil to control the actions of agents in the credit market, with clipping around the IP issuing postpaid payment instruments, of the types of IFs – SEP, SCD and ESC –, the hypothesis was verified according to which the risks inherent to their activities would justify the adoption of different criteria to regulate such agents and its similar activities. The verification was carried out, first, by understanding the applications of the definition of IF in the Brazilian legal system, mainly as a barrier to entering the credit market, which led to the forced analysis of the legislative process for the enactment of Lei n. 4.595/1964, the study of the rules that preceded it and the verification of the level of influence they received from the United States of America, a country often cited as an inspiration for Brazilian regulation. It was also found out the reason for applying the barrier to entry in relation to each of the agents of the thematic focus, which required understanding the acts performed for the exercise of their activities and the possible risks arising therefrom. Using empirical research and a qualitative method, the contractual instruments and the websites used by them were analyzed, information made available by the BCB, the doctrinal conception of the risks inherent to the activities of the agents studied and their state regulation. The hypothesis was refuted, first, because no uniform justification was found to explain the regulatory difference dispensed to the agents studied, with three central qualifications – IF, IP and ESC –, the first two of which are divided into sub classifications for which there are different forecasts. of control criteria for entry and permanence in the credit market. Second, because it was found that the risks inherent to the activities of the agents studied do not lend themselves to explaining the adoption of different regulatory criteria, since, with regard to the supply of credit, they run similar risks. In relation to the United States, greater influence was identified in the Brazilian regulatory construction in discussions related to the creation of a central bank. It was also diagnosed that the US regulatory scenario is vast and highly fragmented, with banks authorized at federal, state and both levels, and non-banking institutions (shadow banking) for which an extensive law was published, the Dodd-Frank Act of 2010. Among the various points governed by it, the forecast of mapping agents that offer greater risk to the market and encouraging regulatory agencies to constantly create measures to treat mapped cases as relevant stands out. In the case of the discipline of risks inherent to the market, extensive rules on IF and IP were found, which could very well be standardized to have their applicability broadly defined, regardless of the type of institution, but subjecting the agent according to the exercise of the credit offer activity. Such results indicate the need to adapt the norms analyzed, especially those that establish barriers to the entry of the agents studied in the market, either to avoid gaps, non-uniform treatment, or to achieve the constitutional objectives of SFN regulation. For new investigative fronts, one possible answer to be study is whether it is possible to establish indicators capable of dealing with the innovations constantly promoted in the market and, for this purpose, to assess whether it would be sufficient to adopt as a model the US state response to the 2008 crisis with the recognition and treatment of shadow banking. One can also analyze whether it would be enough to make some minor changes to Lei n. 4.595/64, how to change the wording of item V of art. 1, item VIII of art. 4, item X of art. 10 and the art. 18, in order to establish a new entry barrier in the credit market, regardless of the agent's classification as a financial institution. In order to adopt this strategy, there are strong indications that it would be necessary, first, to define one or more criteria to govern the applicability of this type of control criterion.