Responsabilidade penal por omissão imprópria do compliance officer : dos fundamentos do compliance à análise de casos práticos no contexto brasileiro

Abstract

This dissertation was built using the deductive method and the exploratory, bibliographical, applied and qualitative research technique. The central question that the work seeks to answer is: “Is it possible to impute criminal responsibility for improper omission to the compliance officer in the Brazilian context?”. To answer this question, the work starts from the fundamental bases of compliance, goes through the dogmatics of improper omission and ends with the analysis of practical cases. The exhibition was divided into three chapters. The first chapter aimed to outline the details of the compliance officer's role in terms of the duty to be, since, in terms of being, the duties of this professional vary according to the reality of each company. The second chapter aimed to deepen the study of improper omissive crimes, seeking, in the end, to establish a connection between this type of crime and the work performed by the compliance officer. The third chapter sought to connect the objects of study of the two initial chapters through the proposition of four practical cases in which criminal liability for improper omission of the compliance officer could be considered. The first two cases proposed are developed from the structure of the joint stock company, while the last two were made based on the configuration of the limited liability company. In each of the situations, the practical difficulty of attributing improper omissive criminal liability to the compliance officer due to the absence of his position as guarantor was clear. It was concluded, in the end, that the core point that prevented criminal liability was the lack of power to act to avoid the typical result, a fact that is largely the result of the immaturity of the compliance culture in Brazil, which is marked by the lack of delimitation of the tasks that should be in charge of the professional in question.