A responsabilidade penal dos administradores de empresas e o compliance como instrumento de prevenção à criminalidade empresarial

Abstract

In response to the aspirations of society in the face of the recurrent impunity of agents of whitecollar crimes, the legal systems began to accept the liability of companies alongside its representatives. Thus, this work seeks to analyze how the criminal liability of companies' directors takes place. As will be seen, the courts use improper omission as a strategy of individual accountability. The omission, therefore, for the violation of fundamental duties, is the result of an absence of an expected behavior due to the functional position occupied by the administrator. Qualified as guarantors of the protection of legal assets threatened by the company, considered a source of danger, the administrators started to be condemned simply and solely for occupying a position of hierarchy in the organizational structure. This arrangement not only calls into question the conception of Criminal Law as an ultima ratio, but also violates fundamental principles that govern Criminal Law. In this sense, we sought to delimit the liability of administrators based on a concrete analysis of the requirements for punishability for improper omission, given that the determination of the guarantor's position is only a first step in determining whether or not the offender is punishable. In view of the frequent condemnations not only of companies, but also of their representatives, combined with the need to restore the trust of society shaken by numerous financial scandals, companies began to realize the need to ensure better governance in the exercise of their activities. Criminal compliance emerges, therefore, as a crime prevention mechanism, which aims to avoid the criminal liability of these people. As will be seen, the simple implementation of Compliance programs is not capable of immunizing the company against scandals or crises, but it reduces risks, while improving internal inspection and increasing the fight against fraud. The existence of an effective ethics and compliance program protects the legal person from involvement in criminal practices, while protecting its administrators criminally, civilly and/or administratively.

Date of Award	13 Sept 2022
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Germano Marques da Silva (Supervisor)