The new brazilian anti-corruption law
The new brazilian anti-corruption law
Article by Luiz Augusto
Law 12,846, in force since 2014, provides for the administrative and civil liability of legal persons for the commission of acts against the public, national or foreign administration, giving a new perspective about the issue in Brazilian law.
A number of harmful acts may affect legal entities in an objective way, in administrative and civil spheres, even if such acts are done for the benefit of the companies themselves or not. This objective accountability of the legal person is a new rule in the Brazilian legal system, although individuals may be accountable as well, however, according to the extent of their guilt.
Even in cases of contractual change, transformation, incorporation, merger or demerger, it remains the responsibility of the legal person.
A point of major innovation can be found in Articles 1 and 5, since the illegal acts do not only focus on national public assets but also on foreign or if these are harmful, also to national or foreign governments. Such acts may be subject to penalties, in the following situations:
I - promise, offering or giving, directly or indirectly, an undue advantage to a public servant or a third person related to him;
II - arguably, finance, fund, sponsor or otherwise subsidize the practice of unlawful acts provided for in this Law;
III - proven to make use of an intermediary person or entity to conceal or disguise their real interests or the identity of the beneficiaries of the acts carried;
IV - in relation to bids and contracts:
a) frustrate or defraud, by adjustment, combination or any other expedient, the competitive nature of the public bidding process;
b) prevent, hinder or defraud the performance of any act of public bidding procedure;
c) away or look away bidder, by fraud or offering advantage of any kind;
d) defraud public bidding or its contract due;
e) create, fraudulently or irregularly, an entity to participate in public bidding or entering into public contract;
f) obtain undue advantage or benefit fraudulently, modifications or extensions of contracts with the government, without authorization by law, the act of contravening public bidding or their contractual instruments; or
g) manipulate or defraud the financial equilibrium of the contracts with the public administration;
V - Hamper activity research or supervision of bodies, entities or public officials, or intervene in its operations, including the sphere of regulatory agencies and supervisory bodies of the national financial system.
“Foreign public administration”- bodies mentioned in paragraph 1 of Article 5, means any foreign government bodies, state bodies or diplomatic representations of any foreign country, at any level or sphere of government, as well as corporations controlled, directly or indirectly by governments of a foreign country.
Fines of up to 20% of gross sales of the company or to R$ 60 million may be applied, which obviously can derail even the existence of the company itself. Moreover, legal figures such as loss of assets, rights and values??, partial suspension or prohibition of activities, can also be applied without prejudice to any other, but with the possibility, however, of being awarded leniency agreements with entities that collaborate in investigations, with possible exemptions or reductions of sentences.
Thus, the Brazilian legislature that enacted the new Anti-Corruption Law collaborates with public and private sector in order to prevent public officials from being corrupt, to reduce corruption, encouraging the adoption of codes of ethics, audits, incentives for reporting irregularities and compliance programs. Thus, it is expected that such incidents are extremely diminished, enabling Brazil to grow in a moral and ethical way.