O compliance empresarial como mecanismo de autorregulamentação em situações de conflitos de interesses nas sociedades empresárias
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Data
2023-07-03
Tipo de documento
Monografia
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Área do conhecimento
Ciências Sociais Aplicadas
Modalidade de acesso
Acesso fechado
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Autores
Souza, Fernanda Nunes Coelho Lana E
Orientador
Lopes, Luciano Santos
Coorientador
Resumo
Ao longo dos anos, várias iniciativas e avanços vem sendo realizados em diversas partes do mundo, acerca do tema conflito de interesses, tanto nos aspectos normativos, quanto no âmbito da governança corporativa e dos mecanismos de Compliance nas sociedades empresárias. Tais mecanismos, na qualidade de ferramenta autorreguladora das sociedades empresárias, tem se valido como importante instrumento para a prevenção, detecção e remediação do conflito de interesses, no Brasil e em outras partes do mundo. E também têm sido adotados de forma exitosa, inclusive, frente a vedação expressa dos conflitos de interesses presentes em normativos vigentes no Brasil. Contudo, em virtude de recente posicionamento da Comissão de Valores Mobiliários (CVM), marco teórico do presente trabalho, foi adotada a Teoria Substancialista ou Teoria Substancial em contraponto a Teoria Formalista ou Teoria Formal. O tema problema proposto girou em torno da capacidade ou não do Compliance Empresarial, de tratar dos conflitos de interesses surgidos, quando da tomada de decisão por seus acionistas, quotistas e demais dirigentes. E concluiu-se previamente e hipoteticamente, que os mecanismos de Compliance constituem ferramentas de autorregulamentação das próprias sociedades empresárias. A metodologia utilizada no presente trabalho pautou-se na concepção dedutiva, iniciando-se pelos conceitos gerais, análise da doutrina nacional e internacional, boas práticas e da legislação brasileira e estrangeira. A conclusão alcançada foi que o dito posicionamento da CVM contrariou os avanços recentes até então obtidos nesta temática; em virtude da existência das boas práticas de governança corporativa nacionais e internacionais e dos mecanismos de Compliance hoje existentes. Pois, tais ferramentas de Compliance têm o condão de detectar e tratar os riscos de integridade presentes nas sociedades empresárias de forma a prevenir a sua ocorrência. Portanto, a adoção de mecanismos de Compliance em caráter profilático é capaz de prevenir a ocorrência de conflitos de interesses, quando da tomada de decisão no âmbito da governança corporativa, especificamente no seio da Assembleia de Acionistas.
Over the years, several initiatives and advances have been carried out in different parts of the world, regarding the topic of conflict of interests, both in the normative aspects and in the scope of corporate governance and Compliance mechanisms in companies. Such mechanisms, as a self-regulating tool for private business companies, have been used as an important instrument for the prevention, detection and remedy of conflict of interests, in Brazil and in other parts of the world. And they have also been successfully adopted, including in view of the express prohibition of conflicts of interest present in regulations in force in Brazil. However, due to the recent position of the Brazilian Securities and Exchange Commission (CVM), the Substantial Theory or Substantial Theory was adopted as opposed to the Formalist Theory or Formal Theory. The methodology used in this work was based on the deductive conception, starting with general concepts, analysis of national and international doctrine, good practices and Brazilian and foreign legislation. The conclusion reached was that the said position of the CVM contradicted the recent advances obtained so far in this theme; due to the existence of good national and international corporate governance practices and the existing Compliance mechanisms. Well, such Compliance tools have the ability to detect and deal with the integrity risks present in business companies in order to prevent their occurrence. Therefore, the adoption of prophylactic Compliance mechanisms is capable of preventing the occurrence of conflicts of interest, when making decision Over the years, several initiatives and advances have been carried out in different parts of the world, regarding the topic of conflict of interests, both in the normative aspects and in the scope of corporate governance and Compliance mechanisms in companies. Such mechanisms, as a self-regulating tool for private business companies, have been used as an important instrument for the prevention, detection and remedy of conflict of interests, in Brazil and in other parts of the world. And they have also been successfully adopted, including in view of the express prohibition of conflicts of interest present in regulations in force in Brazil. However, due to the recent positioning of the Brazilian Securities and Exchange Commission (CVM), the theoretical framework of this work, the Substantial Theory or Substantial Theory was adopted as opposed to the Formalist Theory or Formal Theory. The proposed problem theme revolved around the ability or otherwise of Corporate Compliance to deal with conflicts of interest that arise during decision-making by its shareholders, quotaholders and other managers. And it was previously and hypothetically concluded that the Compliance mechanisms are self-regulation tools of the business companies themselves. The methodology used in this work was based on the deductive conception, starting with general concepts, analysis of national and international doctrine, good practices and Brazilian and foreign legislation. The conclusion reached was that the said position of the CVM contradicted the recent advances obtained so far in this theme; due to the existence of good national and international corporate governance practices and the existing Compliance mechanisms. Well, such Compliance tools have the ability to detect and deal with the integrity risks present in business companies in order to prevent their occurrence. Therefore, the adoption of prophylactic Compliance mechanisms is capable of preventing the occurrence of conflicts of interest, when making decisions in the scope of corporate governance, specifically within the Shareholders' Meeting.
Over the years, several initiatives and advances have been carried out in different parts of the world, regarding the topic of conflict of interests, both in the normative aspects and in the scope of corporate governance and Compliance mechanisms in companies. Such mechanisms, as a self-regulating tool for private business companies, have been used as an important instrument for the prevention, detection and remedy of conflict of interests, in Brazil and in other parts of the world. And they have also been successfully adopted, including in view of the express prohibition of conflicts of interest present in regulations in force in Brazil. However, due to the recent position of the Brazilian Securities and Exchange Commission (CVM), the Substantial Theory or Substantial Theory was adopted as opposed to the Formalist Theory or Formal Theory. The methodology used in this work was based on the deductive conception, starting with general concepts, analysis of national and international doctrine, good practices and Brazilian and foreign legislation. The conclusion reached was that the said position of the CVM contradicted the recent advances obtained so far in this theme; due to the existence of good national and international corporate governance practices and the existing Compliance mechanisms. Well, such Compliance tools have the ability to detect and deal with the integrity risks present in business companies in order to prevent their occurrence. Therefore, the adoption of prophylactic Compliance mechanisms is capable of preventing the occurrence of conflicts of interest, when making decision Over the years, several initiatives and advances have been carried out in different parts of the world, regarding the topic of conflict of interests, both in the normative aspects and in the scope of corporate governance and Compliance mechanisms in companies. Such mechanisms, as a self-regulating tool for private business companies, have been used as an important instrument for the prevention, detection and remedy of conflict of interests, in Brazil and in other parts of the world. And they have also been successfully adopted, including in view of the express prohibition of conflicts of interest present in regulations in force in Brazil. However, due to the recent positioning of the Brazilian Securities and Exchange Commission (CVM), the theoretical framework of this work, the Substantial Theory or Substantial Theory was adopted as opposed to the Formalist Theory or Formal Theory. The proposed problem theme revolved around the ability or otherwise of Corporate Compliance to deal with conflicts of interest that arise during decision-making by its shareholders, quotaholders and other managers. And it was previously and hypothetically concluded that the Compliance mechanisms are self-regulation tools of the business companies themselves. The methodology used in this work was based on the deductive conception, starting with general concepts, analysis of national and international doctrine, good practices and Brazilian and foreign legislation. The conclusion reached was that the said position of the CVM contradicted the recent advances obtained so far in this theme; due to the existence of good national and international corporate governance practices and the existing Compliance mechanisms. Well, such Compliance tools have the ability to detect and deal with the integrity risks present in business companies in order to prevent their occurrence. Therefore, the adoption of prophylactic Compliance mechanisms is capable of preventing the occurrence of conflicts of interest, when making decisions in the scope of corporate governance, specifically within the Shareholders' Meeting.
Palavras-chave
Conflito de Interesses, Governança Corporativa, Compliance Empresarial, Programa de Compliance, GRC, Teoria Formalista ou Materialista