The Punitive Multiplicity In The Capital Markets

Unlawful conduct in the financial and capital markets is divided into three types: illicit securities and publicly-held companies; the illicit financial market; and crimes, which are subdivided between those against the Financial System (SFN), provided for in Law No. 7,492, of June 16, 1986, and against the capital market, pursuant to Law no. 6,385, December 7, 1976.

For each species, the legislation determines a body exclusively competent to process and sanction the acts in them framed. Administrative offenses within the securities market are processed and (CVM), pursuant to articles 9 and 11 of Law No. 6,385 / 76. THE competence to punish administrative illicit transactions within the financial market, in turn, was given by article 10, item IX of Law No. 4,595, of December 31, 1964, to the Central Bank of Brazil. Crimes against the System National Court are judged by the Federal Court (article 26 of Law n ° 7,492 / 86).

Despite the clear legal distinction between the competent bodies to judge and deal with each gender, matter generates doubts. This is because there is no ontological difference between administrative and criminal offenses. Nothing prevents, therefore, that conduct is unlawful in more than one sphere among those above. It is enough that the law says so.

Take, for example, a financial institution administrator who practices loan disagreement with the so-called "good banking technique", ie giving credit without regard to "(i) the suitability of the debtor; (ii) its economic capacity; (iii) their sources of income; (iv) the actual or personal guarantees that may be to offer; and (v) the term of the operation ". Such an act violates several rules of the Brazilian legal system.

Firstly, those who practice the conduct incurs fraudulent or reckless institution management crime according to the context. Pursuant to article 4 of Law No. 7,492 / 86, the crime has as a Justice, in all its instances, and its punishment varies from two to 12 years, depending on the circumstances and acts that make up the conduct.

Another description given to the same conduct by Brazilian law is "to carry out operations that do not comply with the of selectivity, guarantee, liquidity and diversification of risks ". Exempted by Council regulation National Monetary Council (CMN) [1], the practice constitutes an administrative offense punishable by the Central Bank and Board of the National Financial System (CRSFN - second instance in sanctioning processes...