A RESPONSABILIDADE PENAL DO ADMINISTRADOR E OS PROGRAMAS DE COMPLIANCE: APORTES DOGMÁTICOS ACERCA DA POSSIBILIDADE DE ISENÇÃO OU MITIGAÇÃO DA PENA

INDIVIDUAL CRIMINAL LIABILITY AND COMPLIANCE PROGRAMS: DOGMATIC CONTRIBUTIONS ABOUT THE POSSIBILITY OF EXEMPTION OR MITIGATION OF THE PENALTY

Abstract

Abstract: Compliance programs represent a dynamic state of compliance with regulatory guidelines (internal and external) developed, implemented and executed from a complex system of policies, internal controls and procedures designed to ensure that the organization remains in a state of regulatory integrity and ethics. Criminal compliance, in turn, as one of the focuses of the program, aims to ensure compliance with the rules of a criminal-law nature and the prevention of risks. In this context of compliance programs, the analysis of the administrator's criminal liability acquires new contours and complexities, especially related to improper omission, not only from the theory of the delegability of functions - and, consequently, from the guarantee duties - but also by the creation the figure of a person responsible for compliance (compliance officer), to whom senior management delegates duties of oversight and inspection of certain business risks (those chosen to be part of the compliance
program). Although the criminal benefits arising from an effective compliance program have been analyzed, almost exclusively, from the perspective of the legal entity, it is possible and appropriate to sustain that, under certain concrete
circumstances, the exclusion or mitigation of criminal liability can also be achieved to administrators, especially in commission crimes of omission. The proposal defended in this article is that criminal compliance, from an effective program can (and should) produce effects of exclusion and mitigation of criminal liability, not only in relation to the legal entity, but also in relation to the administrator, delimiting rules that allow the departure from the typical fact (especially due to the analysis of the expected act as guarantor, objective imputation - allowed and tolerated risk and principle of trust - and subjective),
anti-legality (cause of lege ferenda or even a supralegal cause) and culpability, or mitigation of punishment, without neglecting other procedural benefits or legislative innovations.
Keywords: Compliance. Criminal Compliance. Criminal Liability.