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The current reality of  corporate criminal law

Today's criminal law must be shaped by the demands of the globalized market and interlegality.

 

Corporate Criminal Law is a reality, especially after the interference of international bodies, such as the OECD, in the legal systems of nations.

 

Brazil is one of the countries that adopt soft law recommendations, legislating on matters affecting the economy and the operation of companies.  

 

Two extremely important laws are the result of soft law, the Criminal Organizations Act, Act No. 12,850 of 2013 and the Anti-Corruption Act, No. 12,846 of 2013.

 

The criminal lawyer must be prepared to use fundamental dogmatic concepts to ensure that companies are treated as lawful groups, moving them away from the law intended for criminal organizations.

Competition issues and corporate disputes

Major corporate disputes between shareholders and families, business and competition disputes between companies in the same sector, in the marriage of Criminal Law and Corporate Law, Competition Law, the regulatory sectors, Family Law and Civil Litigation will create the bond of specialty of the area. Only the professional's personal dedication will make him able to understand the details of specific markets and build the litigation strategy or to avoid common litigation in different fields of law for application in a particular sector of the economy.

Economic crises and business management

In business economic crises, the criminalist can legally support the decision-making process of the manager, demonstrating the increase in risks in certain management options. 

 

Labor lawsuits, civil default, tax, banking and environmental liabilities are moments of great distress to managers in companies undergoing economic crises, in which wrong decisions can lead to future criminal proceedings.

 

During ongoing investigations or proceedings, specialized defenses in Criminal Law linked to tax, financial, environmental, bankruptcy, among others, must refine strategies and share matters.

The risk of contracting with public power in Brazil

Contracting with the government is perhaps the biggest risk area for companies today.

 

The risk starts even before the start of the bidding process, going through and after.

 

 Criminal law must be mixed with Administrative Law and civil litigation, whether in the procedures of the TCU, CGU, AGU, TCE's and TCM's, already anticipating possible results that generate incriminations in a preventive manner.

Defenses in administrative procedures and in public civil actions and administrative improbity must also be accompanied by a criminal lawyer, as the fields must communicate in harmony.

 

In police investigations, ministerial investigations and criminal proceedings, criminal lawyers should also interface with other areas of law.

Employees' offenses against the company and against third parties

Acts of employees and employees against the company must be meticulously treated to avoid labor liability, in view of ideological biases in labor justice, as well as acts against third parties outside the company, also enabling the extension of criminal responsibility to other hierarchical levels.

Environmental Criminal Crime

Industrial activities and agribusiness are included in the area of environmental criminal risk.

 

Environmental Criminal Law is an area of Corporate Criminal Law and should be treated with the specialty of understanding the complexity of the so-called administrative accessory, which is the complementation of criminal types by acts and regulations of the administrative authority. 

 

In this area, the care of the defense must be redoubled due to the possibility of incriminating the company and not only the responsible individuals.

Financial crimes

Financial offenses and crimes against the capital market are areas of extreme specificity, in view of the linkage of the financial and capital markets to regulatory bodies such as BACEN and CVM, in which there will also be administrative accessory.

  

On the other hand, the specific crime of foreign currency evasion is a common practice, even for those who do not belong to the financial market, being a crime with great power of contamination, and object of studies at the University of São Paulo by partner Fábio Antônio Tavares dos Santos.

Crimes of everyday business :: Tax errors and frauds
Problems of tax legislative interpretation
Duty evasion ¨ Reception

The daily life of a company can still suffer from accounting errors, tax fraud, erroneous import of machinery and components, misuse or even the use of components purchased without criteria, in the form of receipt.

 

Payments made on imports that generate embezzlement can result in money laundering operations.

Crimes against the economic order and the consumer

Agreements between companies that may appear healthy to the economy may be the subject of proceedings at CADE, resulting in investigations into cartel crimes.

  

Products for sale or exposed to consumers are extremely regulated in form and mode of marketing.

 

In all sectors of production and marketing, there are risks of criminal exposure due to errors, failures or mismanagement procedures. 

Image protection and reputation

The information society has its existence and business platforms in social networks.

 

Image takes on an exceptionally important place as a source of income and opportunities.

 

Crimes against honor committed on social networks return to importance, as well as the reputation of companies, and should be helped by Criminal Law.

Protection of business secrets and computer data

Computer offenses increasingly occupy the universe of companies in the concern of fraud and data security.

 

The process of gathering evidence prior to the police action must be done in a thorough and guided manner.

Compliance

A well-constructed and implemented compliance system can prevent the practice of crimes within the company, as well as isolate this practice and its accountability in certain sectors, without unbridled contamination of lateral or superior executives.

 

Compliance well used is an exceptional management tool, but only if it is implemented in the correct hierarchical position and with the proper means employed. 

Common offenses :: Classical criminal law

Liberal professionals, common people, public servants, family members of executives or themselves may suffer misfortunes in their lives and those of their families as perpetrators or victims.

 

From troubled divorces that generate violence in the couple, misuse of assets, involvement of children with the use of alcohol and illicit drugs, car accidents, aggressions, neighborhood problems, etc.

Particularities

When affected by major police or ministerial operations, the lawyers' care does not fall only to executives and those affected by the restrictive measures.

 

Emotional support to family members and people close to those affected is essential. As well as the help to those who find themselves in a situation of restriction of freedom, whether full or partial.

 

Criminal proceedings are always a painful moment, but it is the magnificent result of human construction and evolution from the tragedy of private revenge and the barbarities of injustice and ordeals.

 

  There is no place for sentimentality, nor is insensitivity allowed.

 

The pain of those involved is part of the problem of criminal defense and must be treated with due consideration and guidance.

 

Whether in the way of producing pieces and arguments, of sustaining their cases before the country's courts, or in the refined personal treatment with the authorities and other parties involved, the firm has its motto in the art of defending the interests of its clients, within the highest precepts of professional ethics, maintenance of its values, non-compliance with injustice and always respecting the laws and the most intrinsic human values. 

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