Some consequences of the Lava Jato operation

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By Fábio Konder Comparato*

Until today, practically in all countries, the controller of a private company is considered as its owner or proprietor. In this condition, he can use it or dispose of it as part of his assets, regardless of the size of the company, whether sole proprietorship or multinational. And according to the basic dogma of the capitalist system, suppression of this property is inadmissible.

But what does a company really consist of? It enters the classification of the different kinds of goods, contained in Book II of the General Part of the Brazilian Civil Code? Certainly not, because every company is also integrated by the workers, its employees; at least until advances in robotics make them totally expendable...

Well then, Book II of the Special Part of the new Civil Code, which entered into force on January 11, 2003, has Company Law as its object. None of its articles, however, contains the legal definition of that institution; only the figure of the entrepreneur and the institution of the establishment are regulated.

It turns out that any business organization, whether large or small, can be used as an instrument for committing crimes. There are many examples, it suffices to cite the most common ones, such as active corruption (penal code, art. 333), including in international commercial transactions (Criminal Code, art. 337-B); fraud in public competition (Criminal Code, art. 335), including in international commercial transactions (Criminal Code, art. 337-C); or crimes against the consumer.

It so happened that, with the launch of the so-called Lava Jato operation – which, according to all the evidence, was conceived and orchestrated by the Americans – other criminal modalities, coined in the United States, such as the criminal organization came into focus (Law nº 12.850, of August 2, 2013), in addition to new procedural means of proof, such as the award-winning collaboration (plea bargain), regulated in articles 4 and following of the same law, and widely used in the Lava Jato operation. Thanks to these “Americanisms”, there has been a proliferation of criminal cases brought against businessmen – whether controllers or members of the board of directors of large companies – as well as all sorts of collaborators, such as intermediaries and brokers.

Operation Lava Jato was put under the command of Deltan Dallagnol, a member of the Federal Public Prosecutor's Office closely linked to the Americans; and the resulting criminal proceedings were, from the beginning, channeled to a Federal Court of Justice in Curitiba where, by a curious coincidence, Judge Sérgio Moro was acting; although none of the large companies involved in them, starting with Petrobras, is headquartered in the capital of the State of Paraná.

Sérgio Moro was considered by the magazine Fortune, in March 2016 – exactly in the month in which the famous protests against the government of Dilma Roussef took place –, one of the fifty personalities, considered as world leaders; was, in fact, the only Brazilian included in that list. The following month, Moro was designated by the magazine Time one of the hundred most influential people in the world, being once again the only Brazilian so considered.

The consequences of the Lava Jato operation were very serious for the companies involved and indirectly harmed the Brazilian economy as a whole. But the controlling entrepreneurs of such companies, thanks to the denunciations they made in the award-winning collaboration scheme, were able to largely escape the custodial and pecuniary penalties imposed for the crimes of which they were denounced. In other words, as always in this country, entrepreneurs are more important, in all aspects, than the companies under their command.

How to solve the riddle? The solution seems simple to me, but it will hardly be taken into account in the capitalist-oligarchic environment in which we have always lived. If the defendants convicted in criminal cases are entrepreneurs and not companies, why punish the latter severely and ease the punishment of the former? It would be much more rational and in line with the common good to determine by law that the fulfillment of pecuniary penalties be carried out by pledging the share of the controllers in the share capital, which would be sold at a public auction after the criminal proceedings are over.

After all, if corporate control is not a kind of property, but an instrument of power, inside and outside the company, whoever abuses this power must lose it, in order not to continue to harm the common good of society.

*Fabio Konder Comparato is Honorary Professor at the Faculty of Law of USP and Doctor Honoris Causa from the University of Coimbra

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