Sanções na lei anticorrupção

Abstract

This dissertation addresses the sanctions provided for in the Brazilian anti-corruption law, its legal regime, constitutional foundations, and legal criteria for investigation and enforcement. It is a foundational legal research, meaning that the objective is diagnostic and can serve as a substrate for further legal research, including studies on the application of economic analysis of law and game theory applied to law. This foundational study is important for future analyses of legal punitive actions as well as the strategies of those involved in negotiation, advisory, or contentious activities in the resolution of conflicts in administrative or judicial proceedings involving sanctions for acts of corruption. The sanctions in the Brazilian anti-corruption law constitutes a core element for the economic analysis of law and game theory applied to law, because they provide, at least in part, the reward matrix for those involved in acts of corruption. It was observed that in the administrative sphere, fines and publication of the condemnatory decision (excluded in the case of leniency agreements) can be imposed, with broad legal criteria for enforcement, including the effectiveness of integrity programs (compliance). The fine is calculated in two phases, the first with the legal and sub-legal requirements for gradation, and the second phase due to the possible leniency agreement and the percentage of incidence on the imposed fine. In the judicial sphere, the same sanctions provided for in the administrative sphere can be imposed, as well as the forfeiture of assets, rights, and values, suspension or partial interdiction of activities, compulsory dissolution, and prohibition from receiving incentives, subsidies, grants, donations, or loans from public entities. The suspension of activities has a time criterion and the partial interdiction refers to the activities of the legal entity. The constitutionality of compulsory dissolution in cases where it is "habitually used to facilitate or promote the practice of illegal acts" is discussed. State-owned companies may be sanctioned with administrative sanctions and the forfeiture of assets, rights, and values. It is concluded that the normative structure in the Brazilian legal system may be adequate for its intended purposes. On the other hand, future investigations using compatible theoretical tools, especially game theory, may indicate potential improvements that can enhance the adequacy and quality of response.