O acordo de leniência para o ajustamento de condutas ilícitas perpetradas contra a administração pública e seus impactos na indústria do petróleo

Abstract

This work is focused on the analysis of the leniency agreement in the Anticorruption Law and its effect on corporations, specially in the oil industry. The research studies the impacts caused by the leniency agreement within the context of the Anticorruption Law, being certain that the inquiry is carried out under the Corporate Law, despite the need to refer to institutes from other areas of law, such as Constitutional Law, Administrative Law and Civil Law as a result of the relation established by the Anticorruption Act, which is the administrative and civil liability of legal entities practicing unlawful acts against the national and foreign administration. The main problems found in applying the leniency agreement were examined and it was found that the existence of a number of competent authorities who need to sign the agreement, regardless of legal provisions, along with a lack of a established amount of penalty and a limitation to apply the sanctions may jeopardize the corporate activity, generating legal uncertainty for corporations and for the oil industry. The international experience concerning leniency agreements is explored so that it is possible the understand the intrinsic improprieties to the Brazilian legislative production that in that case disrespects disregards not only the effective anticorruption microsystem, but even constitutional and legal provisions on the defense of the public interest and property. The study evidences that the enactment of the standard holding corporations accountable results from the effort to comply with the international conventions ratified by Brazil, which foster the fight against corruption and money laundry as a necessary action for the public interest. The theoretical reference used was the critical-structuralist theory of Corporate Law, where Calixto Salomão Filho proposes a reflection on Corporate Law theoretical thinking, so a change is possible and the Corporate Law becomes able to meet not only economic interests by means of positive law. The thesis makes a systematic analysis of the leniency agreement as consolidated as in the international arena and guided by the Organization for Economic Cooperation and Development and its respective normative incorporation into the Brazilian law, not limited to comments but also critically suggesting a solution according to the social interest and the social role of business.