Os impactos dos programas de integridade (compliance) sobre os deveres e responsabilidades dos acionistas controladores e administradores de companhia

Abstract

This thesis is primarily an analysis of whether and how the implementation of compliance programs has the capacity to induce the interpretation of the duties and responsibilities of controlling shareholders and company managers. Considering the novelty and the actuality of the subject in the Brazilian legal system, two methods were used: theoretical and exploratory. Specifically, there were discussed the main theoretical trends and international experiences in compliance matters, aiming to present and delimit its concept and characteristics. Also were presented in this research the impact of its application into companies according to the debates in corporate law on the role and limits for the exercise of senior management and the controlling power. The function of regulation and self-regulation were considered as important factors in the implementation and effectiveness of compliance programs. Thus, the activity of CVM and the Stock Exchange (B3) were also examined about to the inspection and enforcement of these entities over the companies listed in the Brazilian "Novo Mercado". The research also considered the exam of compliance programs and/or codes of conduct of companies listed in the ―Novo Mercado‖ and whose administrators, controlling shareholders or directors figured in cases of corruption. The theoretical reference used was the Critical-structuralist theory of Commercial Law, in which Calixto Salomão Filho seeks to rescue (and renew) a tradition of critical thinking in the Commercial Law. The results of these conceptual analyzes were: (i) Due the conceptual amplitude and the purposes of compliance programs, their distinction in relation to corporate governance and internal audit, the mechanism has a considerable impact on the activities of managers and controlling shareholders, mainly in what concerns about their duties; (ii) With the scope that the institute produce the intended effects and not only serve as a mitigating measure of sanction, it is necessary to re-read the performance of the administration and the exercise of controlling power in Brazil; (iii) it is essential a more effective action of the entities that act in the supervision and enforcement of market norms, and (iv) interpretation based on critical-structuralist theory can assist in re-reading the foundations and functions of corporate law, not only, but mainly on the duties and responsibilities of managers, in order to make them aligned with the social interest and the social function of the company.