Limites da responsabilidade penal por omissão imprópria de acionistas controladores

Resumo

The research seeks to identify if and to which extent it would be possible to attribute criminal responsibility to controlling shareholders of privately owned corporations who fail to prevent the commission of crimes by members (directors, officers and employees) of controlled companies. The investigation relies on the criteria of the control over the origination of the risk, herein the corporation itself, to determine the extents of an eventual criminal responsibility based on his failure to prevent the criminal result (omission). Our investigations does not address those situations in which the controlling shareholder simultaneously occupies a position on the direct management of the company (either on the board of directors or as an officer). Our analysis limits itself to those powers held by the shareholder as a direct consequence of its position as the controlling shareholder, considering Brazilian Corporate Law. In this sense, we conclude that the conjunction of the powers of orientations of the directive bodies, including members of the board of directors and officers nominated by the controlling shareholder (determining how to proceed in regards to their duties in the direct management and organization of the company), in addition to the capacity to conduct the business, elect and remove the majority of directors and officers, represents a direct capacity to control the origination of the risk, even if indirectly, partially and limitedly, justifying its duty to act to prevent the criminal result.

Ficha do documento

Tipo

Dissertação

Ano

2021

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/30907

Palavras-chave

Derivative omissions offenseCriminal responsibilityControlling shareholder duty of carePrivately owned corporationsResponsabilidade penalSociedade anônimaOmissão imprópriaAcionista controladorPosição de garantidorPosição de garanteDireitoAcionistasSociedades por ações - Brasil