A (des)criminalização do insider trading à luz da criminologia crítica: uma análise do caso JBS S/A

Abstract

The preventive detention of the Batista brothers brought into question the crime of improper use of privileged information, better known as insider trading, typified in Art. 27-D of Law No. 6,385 / 1976, subject to punishment in the administrative, civil and penal spheres. The ruled discussion about the offense revolves around a greater punishment, importing in hardening of the already existing penalties or new penalties. Speeches that motivated new legislation, Law No. 13,506 / 2017, which promoted greater criminalization, since it increased the subjects subject to punishment. Based on this assumption, the objective is to analyze the criminalization of insider trading, which are the legitimating historical bases, including these punitive discourses. Also, it is envisaged to understand the field in which the crime is committed, that is, the Capital Market and the body responsible for it, in this case, the Securities and Exchange Commission. To outline the panorama of crimes against the Capital Market, to then enter into the improper use of privileged information, as well as to envision criminalization in the light of Critical Criminology, in order to understand the media and social influence for punishment and also for punitivist speeches. Nevertheless, carry out the study of the JBS S / A case, in order to visualize in a specific case all the theoretical bases raised. In the end, it is expected to affirm whether criminalization is a means of conflict resolution or not, and is not, to conjecture a new path. We start from the methodological point of view of bibliographic research and document, with consultations with legislative sources, judicial documents, news and reports, supported in a dialectical-historical perspective. We had as important theoretical references analyzes of Eros Grau (2010), Assaf Neto (2014), Viviane Muller Prado (2016) Luiz Regis Prado (2019), Oliveira and Bottino (2012) Ryanna Veras (2014), Fernando Acosta (2004) and Zaffaroni (1989, 2013, 2014).