A influência de indícios e contraindícios no julgamento de insider trading pela CVMuma análise empírica

Resumo

The Brazilian Securities and Exchange Commission (CVM), the main agent combating insider trading in the country, judges cases involving this misconduct predominantly based on the indirect evidence. This type of evidence is composed of a set of robust, plural, and convergent indications which, when weighed against potential counter-indications, allow the decision-maker to reach a conclusion about whether the prohibited act was committed. Given the inherent difficulty in directly proving insider trading, indirect evidence is fundamental in confronting this issue. However, this type of evidence presents significant flaws, particularly due to the inductive reasoning process employed by the decision-maker to reach their conclusion. Inductive reasoning involves analyzing proven facts that lead the decision-maker, based on their personal experience, to broader, non-directly evidenced conclusions, such as the occurrence of insider trading itself. In addition to being subjective, inductive reasoning only leads to probable conclusions, creating a margin of uncertainty that can undermine legal certainty, predictability, and consistency in decisions. In light of this, the objective of this study is to investigate, through an exploratory-descriptive analysis methodology, how the CVM weighs indications and counter-indications to exonerate or convict individuals accused of insider trading, thereby contributing to the reduction of uncertainties inherent in such decisions. Based on an analysis of 137 judgments issued by the CVM between 2010 and 2019, the study evaluates the quantity and quality of indications and counter-indications considered for each accused individual, highlighting potential differences between primary and secondary insiders, as well as the possible relevance of the time interval between trades and the disclosure of material information for the regulator's decision-making process. The findings show that the number of indications or counter-indications in each case appears to significantly influence the evaluation of indirect evidence: higher conviction rates were observed as the number of indications increased, while higher acquittal rates were associated with a greater number of counter-indications. Additionally, primary insiders were generally convicted based on fewer indications compared to secondary insiders, possibly due to the presumptive regime applied to the former. The study also identified the central importance of the justification provided by the accused in determining the CVM's decision, along with the high conviction rates observed when the evidentiary record included indications such as trading behavior inconsistent with the accused’s investment profile, high trading volumes, timing of trades, urgency to trade, and direct evidence of access to material information. Finally, significant differences between acquitted and convicted individuals were identified in relation to the time interval between trading and the disclosure of material information, suggesting that this interval may be an important factor for the CVM to consider in preventing insider trading. By examining aspects of insider trading regulation and offering insights that may inform public policies and regulatory strategies, this dissertation is aligned with the line of research “Economy, Intervention, and Regulatory Strategies.”

Ficha do documento

Tipo

Dissertação

Ano

2025

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/36752

Temas

Políticas Públicas

Palavras-chave

CVMIndíciosContraindíciosProcesso administrativo sancionadorInsider tradingIndicationsCounter-indicationsAdministrative sanctioning processDireitoDireito regulatórioInformações privilegiadas - Uso indevidoSanções administrativasMercado financeiroComissão de Valores Mobiliários (Brasil)