Dissuasão retórica ou retórica dissuasória? A racionalidade econômica por trás das sanções da CVM

Resumo

The present study examines the reasoning underlying the determination of sanctions imposed by the Brazilian Securities and Exchange Commission (CVM), with a particular focus on whether economic deterrence rationality is incorporated into the calculation of penalties. The research problem consists in assessing whether the CVM Board, when determining sanctions in administrative enforcement proceedings, operationalizes the core elements of the deterrence calculus developed by Law and Economics. Based on this research problem, two hypotheses were formulated: (i) that deterrence is recognized by the Board as a purpose of administrative sanctions; and (ii) that such deterrence is operationalized only to a limited extent, through the consideration of few elements of economic rationality, thereby characterizing a form of “rhetorical deterrence,” as opposed to “deterrent rhetoric.” The research falls within the field of regulatory strategies by analyzing the economic incentives produced by the CVM’s sanctioning dosimetry. The theoretical framework of the research is composed, on the one hand, of theories regarding the purposes of punishment, especially those related to general prevention and deterrence, and, on the other hand, of Law and Economics formulations concerning deterrence rationality, particularly models aimed at the internalization of harm and the elimination of gains obtained through unlawful conduct. The theoretical framework also includes an analysis of the normative structure governing sanctioning dosimetry within the CVM, with special attention to the rules established under CVM Instruction nº 607/19 and CVM Resolution nº 45. Regarding the research method, the study adopted a combined theoretical and empirical approach. On the theoretical level, a bibliographical review of punishment theories and economic approaches to deterrence was conducted, alongside an analytical systematization of the sanctioning dosimetry rules applicable to the CVM. On the empirical level, the study surveyed Board precedents issued after CVM Instruction nº 607/19 through the construction of an original database and an analysis of the decisions, focusing on explicit references to deterrence and on the criteria effectively employed in determining sanctions. The findings indicate that deterrence is frequently invoked as a purpose of sanctions, but rarely accompanied by the explicit consideration of core economic-rationality variables, such as expected benefit, probability of detection, and the incentive structure faced by the offender. The study concludes that the reasoning underlying the CVM’s sanctioning dosimetry is closer to rhetorical deterrence than to deterrent rhetoric.

Ficha do documento

Tipo

Dissertação

Ano

2026

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/38877

Palavras-chave

CVMDissuasãoDosimetriaMercado de capitaisSançãoDeterrenceDosimetryCapital marketsSanctionComissão de Valores Mobiliários (Brasil)Direito regulatórioSanções (Direito)