AGAPITO, Leonardo Simões; MIRANDA, Matheus de Alencar e; JANUÁRIO, Túlio Felippe Xavier. Corruption and Latin America's "Serious Threat": an analysis of Argentine and Brazilian recent reforms through the current global standards of the OECD. In: KOSTIĆ, Jelena; STEVANOVIĆ, Aleksandar (ed.). Uloga društva u borbi protiv korupcije: the role of society in the fight against corruption. Belgrade: Institut Za Uporedno Pravo; Institut Za Kriminološka I Sociološka Istraživanja, 2020. p. 285-301.

Abstract

In order to understand the market’s operation and its demands, it is necessary to
analyze the events occurred throughout the 20th Century, especially in its second half.
The economic crimes acquire an undeniable importance after the crisis of 1929, but are
effectively developed after the conflicts of the 70’s and boosted after the scandals of the
90’s. Nowadays, they are required by some markets, especially in order to control greedy
agents. In some way, economic criminal law should not be considered a centralizer or
a conservative economic policy, but a demand of neoliberalist policies aiming for the
recovery of confidence on business and, therefore, keeping up one of the key factors of its
operation. In Europe, the European Council and the European Bank may have their role
in fighting corruption. However, Mercosul has no power to incentive regional measures
and projects compared to them when it comes to the Latin America. Any other regional
organization in Latin America has no impact either. The criminal policy is not exactly
democratic in Latin America. Only Chile, México and recently Colombia are part of OECD,
but this international organization has a central role on defining internal legislation and
public efforts in economic criminal law. By this way, criminal law benefits and privileges
for instance transnational companies with non-empirically validated mechanisms of
compliance and ethical behavior surveillance.

Full text

INSTITUT ZA UPOREDNO PRAVO
INSTITUTE OF COMPARATIVE LAW
INSTITUT ZA KRIMINOLOŠKA I SOCIOLOŠKA ISTRAŽIVANJA
INSTITUTE OF CRIMINOLOGICAL AND SOCIOLOGICAL RESEARCH
PRAVOSUDNA AKADEMIJA
JUDICIAL ACADEMY
V MEĐUNARODNI NAUČNI SKUP
V International scientic thematic conference
ULOGA DRUŠTVA U BORBI PROTIV
KORUPCIJE
THE ROLE OF SOCIETY IN THE FIGTH
AGAINST CORRUPTION
- Tematski zbornik radova međunarodnog značaja -
- Thematic Conference Proceedings of International Signicance-
Urednici/Editors:
Jelena Kostić
Aleksandar Stevanović
Beograd, oktobar 2020. godine
Belgrade, october 2020
ULOGA DRUŠTVA U BORBI PROTIV KORUPCIJE
THE ROLE OF SOCIETY IN THE FIGTH AGAINST CORRUPTION

INSTITUT ZA UPOREDNO PRAVO
INSTITUTE OF COMPARATIVE LAW
INSTITUT ZA KRIMINOLOŠKA I SOCIOLOŠKA ISTRAŽIVANJA
INSTITUTE OF CRIMINOLOGICAL AND SOCIOLOGICAL RESEARCH
PRAVOSUDNA AKADEMIJA
JUDICIAL ACADEMY
V MEĐUNARODNI NAUČNI SKUP
V International scientic thematic conference
ULOGA DRUŠTVA U BORBI PROTIV KORUPCIJE
THE ROLE OF SOCIETY IN THE FIGTH
AGAINST CORRUPTION
- Tematski zbornik radova međunarodnog značaja -
- ematic Conference Proceedings of International Signicance -
Urednici/Editors:
Jelena Kostić
Aleksandar Stevanović
Beograd, oktobar 2020. godine
Belgrade, october 2020

Uloga društva u borbi protiv korupcije, V međunarodni naučni skup
e role of society in the ght against corruption, V International Scientic Conference
Izdavač/Publisher:
Institut za uporedno pravo, Beograd
Institute of Comparative Law, Belgrade
Institut za kriminološka i sociološka istraživanja
Institute of Criminological and Sociological Research
Za izdavača/For publisher:
Prof. dr Vladimir Čolović
dr Ivana Stevanović
Recenzenti/Reviewers:
Prof. dr Božidar Banović, Fakultet bezbednosti Univerziteta u Beogradu (Faculty of security studies,
University of Belgrade, Serbia)
Prof. dr Ioana Vasiu, Babes-Bolyai Univerzitet u Klužu (Babes-Bolyai University of Cluj, Romania)
Prof. dr Milan Škulić, Pravni fakultet Univerziteta u Beogradu (Faculty of Law, University of Belgrade,
Serbia)
Prof. dr Dražen Cerović, Pravni fakultet Univerziteta Crne Gore (Faculty of Law, University of Monenegro)
Naučni odbor/Scientic Committee:
Organizacioni odbor/Organizing Committee:
Prof. dr Vladimir Čolović, Institut za uporedno pravo (Institute of Comparative Law, Belgrade, Serbia)
dr Ivana Stevanović, Institut za krimonološka i sociološka istraživanja (Institute for Criminological and
Sociological Research, Belgrade, Serbia)
Nenad Vujić, Pravosudna akademija (Judicial Academy, Belgrade, Serbia)
dr Jelena Kostić, Institut za uporedno pravo (Institute of Comparative Law, Belgrade, Serbia)
Aleksandar Stevanović MA,(Institut za krimiološka i sociološka istraživanja (Institute for Criminological
and Sociological Research, Belgrade, Serbia)
dr Jasmina Igrački, Institut za kriminološka i sociološka istraživanja (Institute for Criminological and
Sociological Research, Belgrade, Serbia)
Radni jezici konferencije/Ocial Languages: engleski i srpski/english and serbian
Tehnički urednik/Technical editor: Ana Ranković
Štampa/Printer: JP “Službeni glasnik”
Tiraž/Printed in: 200 primeraka (200 copies)
Prof. dr Piotr Mikuli (Poland)
Prof. dr Gordana Gasmi (Serbia)
Dr Marina Matić Bošković (Serbia)
Prof. dr Marko Novaković (Serbia)
Prof. dr Mario Reljanović (Serbia)
Prof. dr Mihajlo Vučić (Serbia)
Doc. dr Hana Kovacikova (Slovakia)
Prof. dr Ana Valvo (Italia)
Doc. dr Ana Đanić Čeko (Croatia)
Prof. dr Istvan Laszlo Gal (Hungary)
Prof. dr Ondrej Blažo (Slovakia)
Prof. dr Laura Stanila (Romania)
Prof. dr Sun Wanhuai (China)

Ova publikacija je izrađena u okviru naučno-istraćivačkog projekta “Srpsko i evropsko pravo:
upoređivanje i usaglašavanje” (broj 179031), koga nansira Ministarstvo prosvete, nauke i tehnološkog
razvoja Republike Srbije, a sprovodi ga Institut za uporedno pravo i naučno-istraživačkog projekta
“Kriminal u Srbiji: fenomenologija, rizici i mogućnosti socijalne intervencije” (broj 47011), koga
nansira Ministarstvo prosvete, nauke I tehnološkog razvoja Republike Srbije, a sprovodi ga Institut
za kriminološka i sociološka istraživanja.
Beograd, 2020
Belgrade, 2020

SADRŽAJ
PREDGOVOR ........................................................................................................................ 11
Natalija Lukić
NEDOZVOLJENA TRGOVINA NA DRUŠTVENIM MREŽAMA
– KRIMINOLOŠKA ANALIZA I STUDIJA SLUČAJA .................................................. 15
Nikola Paunović
PRIMENA INFORMACIONIH TEHNOLOGIJA U KONTEKSTU
SAVREMENIH METODA BORBE PROTIV KORUPCIJE
pretnje, rizici i prevencija ..................................................................................................... 31
Dragan Cvetković, Jasmina Paunović, Milenko Munižaba
KRIVIČNOPRAVNI I KRIMINALISTIČKI ASPEKTI SUZBIJANJA
PRANJA NOVCA SA PRIMEROM IZ PRAKSE .............................................................. 49
Marina Matić Bošković
REZULTATI REPRESIVNIH MERA U BORBI PROTIV
KORUPCEIJE/REZULTATI SPECIJALIZOVANIH ODELJENJA ZA
BORBU PROTIV KORUPCIJE JAVNIH TUŽILAŠTAVA ............................................. 63
Veljko Ikanović
ZAKONODAVNI I INSTITUCIONALNI OKVIR ZA
PROCESUIRANJE KORUPCIJE U BOSNI I HERCEGOVINI .................................... 77
Aleksandar Stevanović
POJAM I ULOGA UZBUNJIVANJA U SPREČAVANJU KORUPCIJE ........................ 91
Miloš B. Stanić
IZBOR OD STRANE PARLAMENTA KAO GARANT LIČNE
NEZAVISNOSTI DRŽAVNIH REVIZORSKIH INSTITUCIJA -
PRIMER ČETIRI ČLANICE EVROPSKE UNIJE .......................................................... 111
Arben Murtezić
MJERENJE KORUPCIJE: IZMEĐU OBJEKTIVNOSTI I
SUBJEKTIVNOSTI ............................................................................................................. 123
Lucia Mokrá
TEORIZACIJA INSTITUCIJA: EVROPSKI JAVNI TUŽILAC U
INSTITUCIONALNOM OKVIRU EU ............................................................................. 133

Darko M. Marković, Siniša R. Dostić
SUZBIJANJE KORUPCIJE NA DRŽAVNOJ GRANICI
– IZMEĐU POSTOJEĆIH I MOGUĆIH MERA ........................................................... 143
Dragan Jovašević
KORUPCIJA U KRIVIČNOM ZAKONODAVSTVU
RUSIJE I ŠVAJCARSKE ...................................................................................................... 157
Dejan Šuput
ULOGA NEVLADINOG SPORTSKOG SEKTORA
U BORBI PROTIV KORUPCIJE U SPORTU ................................................................. 175
Dmitriy V. Galushko
ANTIKORUPCIJSKO ZAKONODAVSTVO U OKVIRU
EVROAZIJSKIH INTEGRACIJA: SAVREMENI IZAZOVI
I UTICAJ NA NACIONALNE PRAVNE SISTEME ....................................................... 185
Mina Zirojević
KORUPCIJA I FARMACEUTSKI PROIZVODI: POSEBAN ODNOS ..................... 195
Filip Mirić
KRIVIČNO DELO DAVANJE MITA U
ZAKONODAVSTVU I SUDSKOJ PRAKSI .................................................................... 209
Manfred Dauster
UZBUNJIVANJE I KORUPCIJA-UTICAJ DIREKTIVE
EVROPSKE UNIJE O ZAŠTITI UZBUNJIVAČA IZ 2019. GODINE
NA NEMAČKO KRIVIČNO ZAKONODAVSTVO ....................................................... 217
Valentina Ranaldi
KORUPCIJA U ZEMLJAMA ZAPADNOG BALKANA: BORBA
ZEMALJA KANDIDATA ZA ČLANSTVO U EVROPSKOJ UNIJI ............................ 245
Dragan Paunović
OPŠTE PRETPOSTAVKE ZA SUZBIJANJE
KORUPCIJE U REPUBLICI SRBIJI ................................................................................. 263
Cui Zhiwei, Sun Wanhuai
MESTO KRIVIČNOG DELA UGROŽAVANJE I UNIŠTAVANJE
PROIZVODNJE I PROIZVODNIH PROIZVODNIH
PROCESA U KRIVIČNOM ZAKONU KINE ................................................................ 273

Leonardo Simões Agapito, Matheus de Alencar e Miranda, Túlio Felippe Xavier Januário
KORUPCIJA KAO „OZBILJNA PRETNJA“ U LATINSKOJ AMERICI:
ANALIZA NEDAVNIH ZAKONSKIH REFORMI U ARGENTINI I
BRAZILU U SVETLU OECD STANDARDA .................................................................. 285
Zoran Pavlović, Istvan Laszlo Gal
KORUPCIJA U ZDRAVSTVU I NOVA REGULATIVA
jedan korak napred, dva nazad .......................................................................................... 303
Jasmina Igrački
UTICAJ KORUPCIJE NA EFIKASNOТ
DRŽAVNIH INSTITUCIJA ............................................................................................... 317

TABLE OF CONTENTS
FOREWORD ........................................................................................................................... 13
Natalija Lukić
ILLEGAL TRADE ON SOCIAL NETWORKS
– CRIMINOLOGICAL ANALYSIS AND A CASE STUDY ........................................... 15
Nikola Paunović
ТHE APPLICATION OF INFORMATION TECHNOLOGY
IN THE CONTEXT OF CONTEMPORARY METHODS
OF THE FIGHT AGAINST CORRUPTION
-threats, risks and prevention .............................................................................................. 31
Dragan Cvetković, Jasmina Paunović, Milenko Munižaba
CRIMINAL LEGAL AND CRIMINAL ASPECTS OF COMBATING
MONEY LAUNDERING WITH AN EXAMPLE FROM PRACTICE ......................... 49
Marina Matić Bošković
RESULTS OF REPRESSIVE RESPONSE TO
CORRUPTION/PERFORMANCE OF SPECIALIZED
ANTICORRUPTION PROSECUTION DEPARTMENTS ............................................. 63
Veljko Ikanović
LEGISLATIVE AND INSTITUTIONAL FRAMEWORK FOR
PROCESSING CORRUPTION IN BOSNIA AND HERZEGOVINA ......................... 77
Aleksandar Stevanović
THE ROLE OF WHISTLEBLOWING
AS A TOOL TO COMBAT CORRUPTION ...................................................................... 91
Miloš B. Stanić
ELECTION BY PARLIAMENT AS GUARANTEE OF PERSONAL
INDEPENDENCE OF STATE AUDIT INSTITUTIONS
- EXAMPLE OF FOUR MEMBERS OF THE EUROPEAN UNION ......................... 111
Arben Murtezić
PERCEPTION OF CORRUPTION:
BETWEEN OBJECTIVITY AND SUBJECTIVITY ...................................................... 123

Lucia Mokrá
THEORIZING INSTITUTIONS: THE EUROPEAN PUBLIC
PROSECUTOR’S OFFICE IN THE EU INSTITUTIONAL FRAMEWORK ............ 133
Darko M. Marković, Siniša R. Dostić
COMBATING CORRUPTION AT THE STATE BORDER
- BETWEEN EXISTING AND POSSIBLE MEASURES ............................................... 143
Dragan Jovašević
CORRUPTION IN THE CRIMINAL LEGISLATION
OF RUSSIA AND SWITZERLAND .................................................................................. 157
Dejan Šuput
THE ROLE OF THE NON-GOVERNMENTAL SPORTS
SECTOR IN FIGHTING CORRUPTION IN SPORT .................................................... 175
Dmitriy V. Galushko
ANTI-CORRUPTION LAW MAKING WITHIN EURASIAN
INTEGRATION: CONTEMPORARY ISSUES OF DEVELOPMENT
AND INFLUENCE ON NATIONAL LEGAL SYSTEMS ............................................... 185
Mina Zirojević
CORRUPTION AND PHARMACEUTICALS:
A SPECIAL RELATIONSHIP ............................................................................................ 195
Filip Mirić
CRIMINAL OFFENCE OF GIVING BRIBE IN
LEGISLATION AND JUDICIARY PRACTICE ............................................................. 209
Manfred Dauster
WHISTLEBLOWING, CORRUPT PRACTICES, THE EUROPEAN
UNION’S “WHISTLEBLOWER”-DIRECTIVE OF OCTOBER 23rd,
2019 POSSIBLE IMPACT ON GERMANY’S CRIMINAL LAW ................................. 217
Valentina Ranaldi
CORRUPTION IN THE WESTERN BALKANS: THE FIGHT
OF THE CANDIDATE COUNTRIES FOR EU MEMBERSHIP ................................. 245
Dragan Paunović
ANTI-CORRUPTION COMMON
PRECONDITIONS IN THE REPUBLIC OF SERBIA ................................................... 263

Cui Zhiwei, Sun Wanhuai
UNDERSTANDING AND APPLICATION OF THE
CRIME OF DESTROYING PRODUCTION AND
OPERATION IN THE CHINESE CRIMINAL LAW ..................................................... 273
Leonardo Simões Agapito, Matheus de Alencar e Miranda, Túlio Felippe Xavier Januário
CORRUPTION AND LATIN AMERICA’S “SERIOUS THREAT”: AN
ANALYSIS OF ARGENTINE AND BRAZILIAN RECENT REFORMS
THROUGH THE CURRENT GLOBAL STANDARDS OF THE OECD .................. 285
Zoran Pavlović, Istvan Laszlo Gal
CORRUPTION IN HEALTHCARE AND NEW REGULATIONS
One step forward, two back ................................................................................................ 303
Jasmina Igrački
THE INFLUENCE OF CORRUPTION ON THE
EFFICIENCY OF STATE INSTITUTIONS ..................................................................... 317

285
CORRUPTION AND LATIN AMERICA’S “SERIOUS THREAT”: AN
ANALYSIS OF ARGENTINE AND BRAZILIAN RECENT REFORMS
THROUGH THE CURRENT GLOBAL STANDARDS OF THE OECD
Leonardo Simões Agapito*
Matheus de Alencar e Miranda**
Túlio Felippe Xavier Januário***
In order to understand the market’s operation and its demands, it is necessary to
analyze the events occurred throughout the 20th Century, especially in its second half.
e economic crimes acquire an undeniable importance aer the crisis of 1929, but are
eectively developed aer the conicts of the 70’s and boosted aer the scandals of the
90’s. Nowadays, they are required by some markets, especially in order to control greedy
agents. In some way, economic criminal law should not be considered a centralizer or
a conservative economic policy, but a demand of neoliberalist policies aiming for the
recovery of condence on business and, therefore, keeping up one of the key factors of its
operation. In Europe, the European Council and the European Bank may have their role
in ghting corruption. However, Mercosul has no power to incentive regional measures
and projects compared to them when it comes to the Latin America. Any other regional
organization in Latin America has no impact either. e criminal policy is not exactly
democratic in Latin America. Only Chile, México and recently Colombia are part of OECD,
but this international organization has a central role on dening internal legislation and
public eorts in economic criminal law. By this way, criminal law benets and privileges
for instance transnational companies with non-empirically validated mechanisms of
compliance and ethical behavior surveillance.
Keywords: corruption, criminal procedure, economic crime, Latin America
INTRODUCTION
Although the legitimacy of corruption crimes comes from the protection of the res
publica, currently there are more interests to be protected. e seriousness of an act of
corruption involving a government agent is undeniable, as when, for example, a politician
manipulates a public contract to unduly favor someone. However, when a private person in
a relationship between two corporations does the same, what is the social cost of it? Actually,
the “grand” corruption occurred in enterprises favors market control by larger legal entities,
* Paulista State University (Brazil), attorney at law.
** e State University of Rio de Janeiro, Associate Coordinator and Professor of the Postgraduate Course;
Public Ministry of State of Rio de Janeiro (Brazil); e mail: matheus.alencarm@gmail.com.
*** Coimbra Faculty of Law (Portugal).

ULOGA DRUŠTVA U BORBI PROTIV KORUPCIJE
286
those that possess enough money to cover these extra costs. at is why the market must
be protected to be truly free and democratic. However, also the small corruption, which
is that one committed, for example, by the employee that asks a bribe to the consumer,
also undermines the condence in the labor environment, is prejudicial to the consumer
and restricts the access to the services and consumer goods (Vega Casillas, 2009). is
perspective is of rst importance, so that there is no inversion in the interpretation and
application of the law, with the mere exclusive protection of the company or the creation
of extra costs that make the commercial practice of small corporations unfeasible. An
accessible and democratic market should be granted.
e United Nations Convention Against Corruption – Merida, 2003 – was a mark
in this issue because it disposed about three crucial topics: I) the denition of bribery in
the private sector (Article 21)1; II) it established prevention policies to the private sector
and also the liability of legal entities in the civil, administrative and criminal spheres; III) it
fomented the judicial cooperation between the states, including instruments of forfeiture and
repatriation of goods. Regarding the interests of the present essay, it should be noted that
the bribery in the private sector must be understood as the infraction of a functional duty
in the scope of a private entity, with the intention of receiving something as counterpart.
However, there is another thing that currently motivates the modications in the
Latin American criminal law and practice: the international pressure to the adequacy to
the Organization for Economic Cooperation and Development (OECD) standards and
the harmonization of legal institutes and regulation to ascend to the post of a country-
member. e directives are more than an ethic preoccupation, but also a cooperation and
fair competition one.
at being said, the present essay aims to analyze the guidelines of the OECD,
seeking to understand how they inuenced dierent criminal policy choices in Latin
America. Especially, we will study the model proposed by the Argentine legislator, which
underpinned the propose of criminalization of private bribery in the country’s Criminal
Code. Aer this, we will carry out a comparative study with some of the other systems in
South America, nishing with a special attention to Brazil, where such criminalization did
not occur, but the enforcement agents behavior changed in the direction to comply with
the OECD’s guidelines. We will demonstrate that the implementation of a good corporate
citizenship depends on cooperation and compatible standards in similar markets, which
are those with greater commercial relationships.
1 “Article 21. Bribery in the private sector. Each State Party shall consider adopting such legislative and other
measures as may be necessary to establish as criminal oences, when committed intentionally in the course
of economic, nancial or commercial activities: (a) e promise, oering or giving, directly or indirectly, of
an undue advantage to any person who directs or works, in any capacity, for a private sector entity, for the
person himself or herself or for another person, in order that he or she, in breach of his or her duties, act or
refrain from acting; (b) e solicitation or acceptance, directly or indirectly, of an undue advantage by any
person who directs or works, in any capacity, for a private sector entity, for the person himself or herself or for
another person, in order that he or she, in breach of his or her duties, act or refrain from acting” (UNITED
NATIONS. OFFICE ON DRUGS AND CRIME, 2003).

287
1. THE OCDE GLOBAL STANDARDS ON BUSINESS ETHICS
e most important normative of OECD on the subject of corruption is the
“Declaration on Propriety, Integrity and Transparency in the Conduct of International
Business and Finance”, dated 27 May 2010. It declares the adequacy, the integrity and the
transparency as fundaments of a more plural and successful market. e grounds for the
punishment of corruption is the infringement of the good governance and the damages
to the sustainable economic development. e prevention measures should respect the
economic and regional particularities of dierent sectors, guaranteeing ecient and
awareness-raising policies.
erefore, the OECD established dierent standards and directives for countries
to adopt a clear model of economic policy from an economic crisis perspective. About
corporate governance, six principles are proposed to achieve investor condence, business
integrity and market stability. ey are: I) ensuring the basis for an eective corporate
governance framework; II) the rights and equitable treatment of shareholders and key
ownership functions; III) institutional investors, stock markets, and other intermediaries;
IV) the role of stakeholders in corporate governance; V) disclosure and transparency; VI)
responsibilities of the board (OECD, 2016, p. 12).
For now, it is not necessary to deepen into each topic, but yes to understand that:
a) there are important roles with sensible responsibilities in the corporations; b) the
transparency and equity duties work as shareholder’s protection; c) none of the principles
worries about the consumers, only with the corporation directors. At that point, a new and
very important gure emerges, the “whistleblower”, which is an informant who recognizes
reprehensible behavior and makes a complaint. He not only shall be protected, but also
is essential to the corruption repression, according to OECD (2011: 4). e protection of
the informant is truly the most important way to establish a duty of collaboration, because
otherwise, employees would be submissive to their superiors. With the abovementioned
protection, in case of non-report, they could become participants2 in the corruption case.
According to the “Good Practice Guidance on internal controls, ethics and compliance”,
adopted by the OECD on 18 February 2010, which indicates preventive policies to be adopted
by the member countries, the forms of corruption are: i) gis; ii) hospitality, entertainment
and expenses; iii) customer travel; iv) political contributions; v) charitable donations and
sponsorships; vi) facilitation payments; and vii) solicitation and extortion (OECD, 2010:
3). It is not said that all these conducts are forbidden, but that even the acceptable ones
are means to practice illicit business. Actions that are accepted in the local culture, such as
hospitality in Arab countries or coee in Latin America, shall be allowed. e unnecessary
and the superuous should not attract the attention of the regulator.
Concerning the OECD, corruption aects the fair competition and the nancial
market stability, in addition to inhibiting foreign investments. e economy must keep
moving, but also expand and internationalize itself. Although there is no doubt on this
point, it is of little use in criminal law, as it is too general. Economic law and securities
2 It might not be always like this. Considering the complexity of the dilemmas, one employee could feel in a
whistleblowing or a crime situation. About this thematic, see: (MIRANDA, 2019).
Leonardo Simões Agapito, Matheus de Alencar e Miranda, Túlio Felippe Xavier Januário

ULOGA DRUŠTVA U BORBI PROTIV KORUPCIJE
288
regulation can prohibit suspicious actions, but criminal law has to understand the broad
picture to properly use its sanctions. Corruption not only aects citizens and public services,
but also creates environmental risks and kills. e abstract market protection does not
oer an exact valuation and its institutes does not allow an adequate and concrete answer.
1. 1. Repercussions on the Sarbanes-Oxley and Bribery Act
Legislation must be understood from its time, its social demand and its abstract
solutions. at is why some preliminary considerations show themselves necessary.
Firstly, it shall be noted that, in international dynamics, there is a persistent sequence of
scandals in the US, which legitimize a sanctioning economic policy and the symbolic use
of criminal law (Laufer, 2006: 242). Aer that, national companies put pressure on rst
world foreign governments and international organizations, which start to adopt something
very similar. With the setting of global standards agreed in that way, the other countries,
including the third world ones, have to accept the same regulatory and criminal policies
or suer restrictions from the central countries (Silveira, 2015: 56-62). ese dynamics do
not apply themselves only to the internationally organized sectors, such as oil production
(due to the Organization of the Petroleum Exporting Countries – OPEC).
In the US, the rst legislation of transnational importance in economic criminal law
was the “Foreign Corrupt Practice Act” (FCPA), of 1977, and it inuenced many provisions
in the OECD regarding the payment of bribes to foreign public ocials. However, the 2002
Sarbanes-Oxley Act (SOx) imposed new transparency obligations through compliance
mechanisms and very high penalties of ne and imprisonment (up to 20 years in prison).
e SOx denes the importance of external auditors, the responsibilities of directors,
requires the opening of nancial reports and protection of “whistleblowers”.
With the 2008 crisis, it became clear that the audits did not occur with the necessary
precision, although some might say that there were simple changes in the relationships
between directors and shareholders. Consequently, in 2010 the “Dodd-Frank Act” - also
called the “Wall Street Reform and Consumer Protection Act” – was published, creating
a consumer protection agency and new rules for private rating agencies.
e market depends on investments, but its stability does not occur with balances
and reports. Transparency is a need for control, as is the denition of roles. Market stability
is the result of eective control. us, it is understood that: a) the denition of roles and
external audits only protects investors, but does not guarantee stability; b) transparency
depends on eective control by agencies and sanctions; c) market protection is done with
consumer protection, even in the nancial market; d) public or private agencies must be
objectively regulated.
In the UK, the rst law on corruption was the “Public Bodies Corrupt Practices
Act” of 1889. However, with the demands of the 1997 OECD Convention on Corruption,
its 2009 recommendations and the pressure from the 2008 crisis, the 2010 “Bribery Act”
was enacted. e behavior is described through situations of exchange of benets due to
the violation of functional duties, even if the promise or request is not accepted. By not
making a distinction between public and private corruption, the agent could be, according

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to Article 3: (a) the holder of any function of a public nature; (b) the exerciser of any activity
connected with a business; (c) the exerciser of any activity performed in the course of a
person’s employment; (d) the exerciser of any activity performed by or on behalf of a body
of persons (whether corporate or unincorporate).
In common law, decisions are made through very dierent criteria from the Germanic
tradition, so that the Bribery Act imposes a maximum penalty of ten years in prison or a
ne, or even both. e companies are imposed to create prevention mechanisms (Article
7), without limiting the ne, in case of insucient due diligence. It is not necessary to talk
about the jurisdiction challenges provided by the Law, but it is important to highlight the
Article 5, which does not recognize any custom as an extralegal cause of exclusion of the
guilt, even in abroad territories.
For the judicial analysis of the “insuciency of preventive diligence” in companies,
provided by Article 7, the Ministry of Justice made a manual of good corporate practices
with some exemplary cases. It oered parameters to the judges, as well as suggestions of
procedures that are appropriate to each business model.
From the Bribery Act, it is possible to conclude that: a) corruption is noticeable in
every scope, even in the small corporations, with no legal personality; b) the penalties
and nes provided by OECD are not clear, but contains a very high degree of symbolism
(which justies the criminal character of the sanction). is seems appropriate to Common
Law, which does not oer legal certainty through the sentence and uses the institute of
plea bargain (the sentence of ten years in the Bribery Act is limited to twelve months);
c) the concepts are too broad and general in Common Law, being the role of the justice
system to make the concrete analysis of the damages and their evaluation; d) the criminal
protection is so symbolic, that the jurisdiction is a proof of an alleged capacity to judge,
as the capacity to investigate infractions - the key of the control - was not expanded like
in the US FATCA - Foreign Account Tax Compliance Act.
2. THE NEW CRIME OF CORRUPTION
IN THE PRIVATE SECTOR IN ARGENTINA
e analysis of the article must follow a sequence that allows the identication of
all the founding elements, its limits and the articulation with the other institutes of the
Law. us, we will start with systematic considerations. Private bribery is found in the
title of “crimes against the economic and nancial order” of the New Argentine Criminal
Code project, which means that it is a violation of the rules of the economic system, its
structures and the trust between the economic actors (Argentina, 2019). One cannot speak
of “system stability”, since its existence is necessarily dynamic and depends on high risks
and innovations. e Law oers few limits and criminal Law in particular, protects only
a minimum trust.
In the 1st Chapter, which deals with the “frauds in commerce and industry”, Article
300 of Argentine Criminal Code presents some very distinct behaviors, such as: a)
manners to manipulate prices; b) reporting frauds; c) unfair administration; and d)
customer manipulation. Although provided for in the same article, they are conducts
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with very dierent victims and protected by distinct means and reasons. With regard to
price manipulation, the crime is committed by an extraneus, but the administrator is an
intraneus3. e Article 302 deals with bribery between private parties, which is not operated
by reason of the company, but by their own desire, and is ontologically closer to reporting
fraud and unfair administration. is demonstrates the perspective of the Argentine
legislator, according to which corruption in the private sector is a crime committed by
employees that spoof the company without the same harm as the directors, who perform
“acts contrary to the law or the statutes”. It is something like the Transparency International’s
dierentiation between “big” and “small” public corruption, but, in the Argentinean law,
the last one receives lower penalties.
In summary, the functionality of the economic system depends on the trust in the
minimum structures, which are rules of competition, compliance with administrative
law and internal regulations. As in a boxing match, the wrestlers can cause damage to the
opponent, but they must respect the rules of the sport, use the equipment conferred by
the judges and be healthy.
2.1. e forbidden relation
e Article 302 inaugurates in the Argentine Criminal Code the expression “undue
advantage”, which does not appear in any other of its criminal oenses. In the chapter
“Crimes of corruption of public ocials or equivalent”, it is provided much more general
terms, such as “benets” (Article 256, paragraph 1), “compensation” (Article 258) or only
“advantages” (Article 266. e Project includes “illicit enrichment” (Article 268), so that the
public function demands neutrality, impersonality. e public interest is not negotiable. e
economic activity is very dierent, because the company is the harmonization of personal
interests. Employees must act for their interests, with their own motivations. e use of
one’s position is only punishable when his interest is disengaged from the interest of the
organization and can create signicant damage.
e Law under analysis brings a relationship of exchange between responsible
agents. Firstly, it is not a case of co-responsibility, since the verbs “require” and “oer”
indicates a crime which does not demands a material result, but in which there are two
agents to be determined, the passive and the active of the bribery. e passive one is the
“manager, administrator, employee or collaborator of a company or private legal person of
any kind”, a person who holds a special trust of the private legal person and whose interest
will be in conict over bribery. e active subject can be anyone who does business with
the corporation, such as a director, administrator, employee or collaborator from another
company, a consumer, a shareholder, a national or foreigner investor, among others,
which can be a natural or legal person. ey cannot hold a position of special trust in the
corporation of the passive subject, so their penalties can be elevated in case they are an
intraneus.
3 e Article 301 deals with the violation of a public system of surveillance on gambling games, which does
not belongs correctly to this chapter. It would be more adequate its allocation on “crimes against public order”
or “crimes against public administration”.

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It is thus clear that a non-prot agent can be red, but the criminal relevance only
exists in cases of wayward actions against the company interest. Bribery between private
parties is not like in public service, which the civil servant cannot enrich with his function.
e inecient employee or director may be removed by its own performance. Corruption
in the private sector is dierent from the public corruption, in which the ocial cannot
obtain prots through his inuence. In the private sector, we must dierentiate the inecient
employee from the criminal. For that, the code of conduct is a very important instrument,
since it helps to dene the objectionable behaviors. A director that oers gis in order to
obtain a good deal or benet of both companies does not harm the condence, but on the
contrary, he complies with it. is behavior cannot be considered corrupt under Article
302 of the Argentine Criminal Code.
ere are two species of benets provided by the letter of the Argentine Law in the
crime in analysis. e benet oered, accepted, requested or received by the subject can
be presented in the form of money, objects, dues or other advantages of any kind (even
services). When the Code uses the terms “for himself or for a third party”, it does not
mean that this last one is a straw man. e intermediary, fungible or not, is an instrument
to obtain the benet. e “third party” mentioned by the Law is someone of the interest
of the corrupt agent, someone with another relationship resolved in other terms, e.g. a
creditor or a son.
e second form of benet, which is a consideration for the rst, oered or provided
by the corrupt agent, occurs in the scope of the corporation victim of the crime. It is the
favoring “in the acquisition or sale of merchandise, contracting of services or in commercial
relations. If it is external to the company, there is no relevance to the crime, e.g., the
marketing director who uses his inuence to convince his employees to buy chocolates
from a friend. ere is an abuse of authority, but that no corruption. e same happens
to the employee who oers personal data from another employees in exchange of some
advantage. ey are cases of abuse of a function which are not reached by the legislator. It
is not the work environment or any people that are protected by the Argentine criminal
law, but the company-employee trust relationship itself.
e crime of corruption has a very important internal element to dene the illicit,
which is the infraction of a personal duty. A public agent corrupts himself with the sale of
his own acts, an “act of occupation”, something from his legal competence scope. It is not
his choice, not being he the guarantor if the corporation’s plan does not dispose in this
way. Is the guarantor omits himself to be usurped in his functions then he is the author
of the corruption in which a third party is beneted (being this last one, usurper of the
functions, is the participant, so extraneus than the corporation agent).
In summary: a) there are always two agents in the crime, the corrupt and the
corruptor; b) the victim is the company, but it can also be the corruptor or his company;
c) the “undue benet” can be of any nature, including services or favors to third parties;
d) the consideration is an corrupted “act of occupation”, an behavior with vitiated will that
directly harms the company.
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2.2. e repressive system
As said before, criminal law is symbolic, it might communicate relevance and need
of respecting market structures. It cannot be dierent, since trust is a fundamental element
for investments and maintenance of consumption, and criminal law is the most serious
public instrument. However, trust is neither objective nor totally rational. Economic
criminal law does not need to be burdensome, because it is vexatious per se. Even if there
is no imprisonment, the process itself is already painful for the involved parties. In this
point, the Argentine legislator was very cautious.
e penalty for the passive or active corruption obey the same parameters, in terms
that the judge must consider the relations of trust that were violated. Abstractly speaking,
the penalties must be compatible, but, particularly, they shall be proportional to the guilt,
whose quantum will be determined by normative criteria oered by the organization
itself. us, the prison sentence can be from six months to four years, while the penalty of
ne (alternative) can be from two to ve times the amount obtained by agent (the benet
obtained by the corrupt or the consideration obtained by the corruptor). However, in
some cases, the prison penalty can be suspended (Article 26), with the application of the
measures from the Article 28. Regarding this, it must be noted that these measures do
not show themselves adequate to the crime of corruption in the private sector, since there
isn’t any situation of violence or relation with drug crimes – even though we can imagine
a hypothetical situation where an agent practices corruption to maintain an addiction.
erefore, the application of the ne would generally be the most appropriate and
proportional penalty, in terms of positive general prevention, without neglecting the
reparation of the damages caused to the company and other victims. For that, the Argentine
Criminal Code allows the forfeiture of the assets from the natural and legal persons
(section 2), even without the conviction (since the illicit origin be proved, according to
Section 5), by demonstrating at least some awareness or duty of knowing that this action is
performed against the companies interests. ere is a clear concern with social pacication
and attention to the victim (Article 32), which is something positive.
With the application of a prison sentence or a ne, the agent (a natural or legal
person) shall be disqualied for “the exercise of industry or commerce” for four years
(and there is no distinction or weighing in terms of proportionality, as it is a measure of
purely negative special prevention, which is very questionable).
Concerning the legal entities, the penalties provided by the Argentine Criminal Code
are, according to the Article 39: I) a ne of two to ve times the undue benet eectively
or potentially obtained; II) total or partial suspension of activities up to ten years; III)
suspension of the right to contract with the State for ten years; IV) loss of benets granted
by the State; V) payment of the costs of the judgment.
It is important to highlight that in the cases of corruption, one cannot claim ignorance
or impossibility to identify the concrete agent who made an undue oer or paid an illicit
amount, but in this case, the borders of the guilt must be adjusted. e director, agent or
employee who participated shall respond for his actions and so the legal person that was
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3. THE LATIN-AMERICAN SCENARIO
In Argentina’s commercial relations scenario, it is important to understand
that Mercosul is a bloc of economic integration that favors the consumer market of
each country and the industrial sector of its members. This demands a protection of
the consumer and the economic and financial systems that are well articulated and
harmonious, even to guarantee the proper investigation of actions, the containment
of damages and the reparation of the victims. For example, the legislative changes
in Spain, with the creation of many new criminal offenses, was a consequence of
the need for harmonization in the European Union, after the conclusions of the
European Parliament and the work of some entities such as the GRECO - Group of
States Against Corruption (Gómez de la Torre, 2015: 43-46). It is not necessary, for
now, an exhaustive analysis of the cooperation’s mechanisms of the bloc, but yes to
analyze the criminalization of the corruption in the private sector in other countries
as a first step in guaranteeing the reparation of damages.
In Brazil, there are currently three projects of criminalization of the corruption
in the private sector, which are the PLS 236/12 (New Criminal Code), PLS 455/16 and
Projeto de Lei da Câmara dos Deputados 3.163/20154. None of them, however, appears
to be in the position to be approved in a near future. It is important to highlight the
existence of the Law 9.279/96, which deals with private corruption as a means of
violating industrial patents (Article 195, IX to XI). is criminalization, which has, by
the way, a trivial penalty (up to one year), was intended to reach a very little scope of
behaviors against the fair competition. In 2013, a New Law was approved in the scope
of the public corruption (Law 12.846/13), extending the Administrative sanctions to the
legal persons. e criminal responsibility of these entities in Brazil, however, remains
restrict to environmental crimes.
ere is a project in the Chamber of Deputies of Uruguay (Carpeta n. 2257
of 2017), elaborated by Daniel Peña Fernández, with three new types of corruption
on private sector: a) bribery of ocials of international organizations; b) bribery in
private business activity; c) use or improper use of privileged information (Camara de
Representantes. República Oriental del Uruguay. Comisión de Constitución, Códigos,
Legislación General y Administración, 2017: 1). All these cases contain the passive
and active agents of corruption. In the explanatory memorandum of the project, it is
presented that the ratication of the United Nations Convention against corruption
(Mérida, 2003) provides for the legislative adaptation and that there is a lack of penal
regulation for the private sector in Uruguay.
In Brazil, the main economic criminal laws were passed in leist governments,
but Uruguay’s private sector corruption bill is from a neoliberal party. is proves the
impact of global standards and their importance for the markets, particularly the Mérida
Convention. At the beginning of Covid-19 crisis, the President Luis Lacalle Pou announced
new substantial measures to Uruguayan Penal Code, expanding the limits of police lethality,
4 For a detailed analysis of these projects, see: (Januário, 2020).
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as well to the Criminal Procedure Code, expanding the competence of a shorter judicial
procedure5.
Paraguay was considered one of the countries with the worst private corruption
index in 2009 by the Global Corruption Report (position 138 out of 180 countries
included), developed by Transparency International (2009: 204). Its policy of strengthening
oversight institutions was considered insucient and that is the main reason to join the
Open Government Partnership (OGP), strengthening a position of transparency by the
government6. In the following years, Presidential Decree No. 4771, dated August 2, 2010,
created the National Integrity Plan (PNI), with a view to reducing corruption in state
bodies. is allowed the country to have a better evaluation by Transparency International
in 2016 (123 out of 176, with a much higher score than in previous years).
Besides, in 2014 it has begun a major reform of the penal and penitentiary system,
including projects to prevent corruption, money laundering and new criminal procedures,
but until today no concrete proposal has been presented. e working group is formed by
members of the three powers.
It is possible to conclude that in Mercosul
7
there is a real concern with global
standards, even when the legislative procedure seems to be slow, demanding new reforms
in the judicial structure and new institutes (such as the criminal liability of legal entities,
which neither does it exist in Uruguay and Paraguay). ere is much more that could be
presented, such as the Law of Access to Public Information and Government Transparency
(Law n.5189/2014) of Paraguay, but in Mercosul the public corruption has still been the
main subject, for the media, for legislators and public opinion (concerned with their needs
as health, education, security, that have so many issues).
In terms of an economic blocks, the European Union has a highly developed
prevention and harmonization policy, while Mercosul published only one political
manifestation (the “Comunicado Conjunto” of June 29, 2011), a formal desire to work
together to confront corruption in its dierent forms (Leal; Granato, 2015: 214). Mercosul
is missing the opportunity to dene its own standards, its personal politics, choose its
collective challenges and its own way. e one that is perceived is an individual challenge
to all countries in adapting to European standards or United States institutes without a
strong voice that could show its needs to other nations, a voice from Latin-America with
eective solutions to their economic and social projects.
ree other countries outside Mercosul, but with very close economies have the
same classication of corruption between private agents, which are Colombia (Article
250-A of the Penal Code, added by Ley n. 1.474 of 2011), Peru (Article 214-A and B of
the Penal Code, published in Decreto Legislativo n. 1.385, of 2018.) and Chile (Article 287
bis and ter of the Penal Code, additional by Ley n. 21.121/2018). e distinctions are: I)
the reform in Peru included as “corruption within private entities” the behavior of “unfair
5 e key points of the proposal to modify the Uruguayan Penal Code presented by Lacalle Pou can be found
at: (INFOBAE, 2020).
6 e plans of action can be found at: (Open Government Partnership, no date).
7 It is important to highlight, however, that of Venezuela was suspended and Bolivia did not completed its
admission process.

295
administration”, also included in Colombia (article 250-B), which had existed in Chile
since 1996 (provided for in article 312 of the Argentine Penal Code, changed in article
300, section 4); II) the penalties are very dierent, being between four and eight years in
Colombia, up to four years in Peru, and ve hundred and forty-one days in Chile; III)
until today there is no criminal responsibility of the legal entities in Colombia and Peru
(there is an administrative responsibility).
4. THE BRAZILINA SCENARIO: MANY WAYS FOR THE SAME AGENDA
Despite the absence of new denition of crime, Brazil saw at the last couple of years
many changes in its criminal system and criminal procedure law. e famous “Carwash
Operation” have promised to “clean up public institutions” and to reinforce a new corporate
culture of compliance. Integrity became the center of this speech and most of political
parties was somehow stroke because of illegal nances and undeclared funds. Important
gures were jailed and 2018 elections showed a common desire for change. Anticorruption
measures were the only propose of many new gures, or even old (but, not so popular
before) gures, just as the elected president Jair Bolsonaro. “Carwash Operation” was so
important that the elected president invited its most symbolic man to become his “Ministry
of Justice”, the former federal judge Sérgio Moro, responsible for the rst criminal sentence
against a former president in Brazil.
However, the role played by the prosecutors in Brazil is even more determinant to
a new criminal policy orientation. In 2013, the Law 12.846/13 (“Anticorruption Law”)
created an option to companies and the Law 12.850/13 (denes “organized crime”) created
the same option to its directors to collaborate with the investigations. A so version of plea
bargain that must be approved by a judge as relevant to prove the occurrence of crimes. In
those cases, the defendant will receive some benets on his sentence. at was determinant
when “Carwash” raised to public attention, because many politicians, corporate managers
and directors started to talk about a plenty of dierent frauds and schemes with political
parties, elected gures and other companies. Many high directors were jailed during
process and day-by-day new documents were reveled, even spreadsheets of bribery paid
in dierent countries.
Despites that, prosecutors went to attack proposing legal reforms. It was argued that
Brazilian justice system has too many guarantees and that corporate crimes should have a
shorter way to punishment. e “10 anticorruption measures” (“10 medidas anticorrupção”)
were endorsed by many public institutions and ocers, but it did not reach the minimum
number of signatures to be accepted by Brazilian congress. ere were many problems on
its text, but the main propose was to reduce criminal procedures guarantees (including
on nullity system, measure n.7) and empowering the process by the use of prison during
process (measure n.9).
In 2019, the former Ministry of Justice and former federal judge Sérgio Moro
proposed a new legal reform, expanding the possibilities of plea bargaining, including
the possibility to spare the criminal procedure, starting the punishment right aer the
ratication of the agreement by a judge. at meant that prosecutors could bargain about
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the facts and penalties without the necessity of having all the evidences. Not everything
was approved, but the result was brought by the Law 13.964/2019: a) if prosecutors intent
to sue a defendant for a crime with a minimum sanction below four years in prison, they
might propose a reduced penalty without a process (art.28-A, Criminal Code); b) at Law
12.850/13, new provisions to protect the condentiality of the agreement were created
and a direct benet is mentioned for those who inform authorities about crimes that were
not disclosed yet (not necessarily involving “organized crimes”); c) to investigate money
laundering, the police and prosecutors gained amplied investigation, allowing monitoring
and the use of covered agents (Article 1
st
, §6º, Law 9.613/98). e Brazilian Congress
imposed many new limitations for judges (mainly the enforced distinction between the
judges who presides the investigation and the one who sentences those accused), but the
role of prosecutor was extended.
As explained before by William S. Laufer (1999: 1392), the U.S courts did not need
the criminal corporate liability when prosecutors may sue only directors and employees
aer companies allocated the guilty by compliance programs. e problem is: should
companies go unpunished because they had compliance programs to shi damages? Should
prosecutors decide against the ones they would present their charges? Should the criminal
policy be designed by prosecutor’s interests on eciency (acting by their chances to win)
or should the criminal policy be oriented by what could be better for public interests? e
central question is, then: who is legitimated to say which is the public interest?
e “Vaza-jato” scandal (a reference to the “Carwash” name in Portuguese, “Lava-jato”,
meaning something close to “Carwash Leaks”), a leakage of prosecutors’ private messages
about “Carwash” operation in Curitiba brought to light the prosecutors’ interests on selling
books and becoming famous, but a particular strategy was revealed: the prosecutors wanted
to make a huge case against a smaller bank to push the bigger to the ropes (Rossi, 2019).
e “systemic risk” is described as “a weapon” to be used on negotiations with the board.
“Carwash” could not stop for many reasons revealed by those messages leakage, but, most
importantly, the link between dierent companies and political agents was built by demand
of defendants for sanction’s benets. However, it became so long that allowed prosecutors
to choose their favorite targets.
It is clearly another internal compliance with the OECD standards. Brazil did not
live a great scandal of private corruption, like other countries, so it becomes dicult to
legitimate the creation of this specic new crime. Otherwise, the exibilization of criminal
procedures may give to the prosecutors the power to implement the same penal expansion
through market, a broader surveillance and allow an integrity enforcement speech. In 2014,
OECD (2014) published a report about Brazilian new Corporate liability law, saying that
Brazil had “closed a loophole” in its legislation, but the numbers of investigations was too
low compared to the country’s size. e recommendations were, for example, to create
a more proactive system of investigation, to clarify the procedures to impose sanctions,
to encourage self-reports (by the companies) and to establish whistleblowing programs.
e “Vazajato” scandal motivated a new legal reform in the abuse of authority
legislation (Lei n.13.869/19, that replaced a very so law from the dictatorship times in
Brazil). is controversial Law established that judges and prosecutors should be liable for

297
using the judicial mechanisms by personal interests. It is applicable for legislative, executive
and judicial agents, but it was celebrated by some society segments as a victory against the
use of public power to pursuit enemies or protect friends. It was a clear message for what
was exposed and many other scandals that occurred8. In the other side, many authorities
claimed it could undermine the investigation and prosecution activities, due to its lack of
certainty, mainly about when one investigation or prosecution was acceptable or abusive.
e OECD (2019) response to this reform was that it was a “seriously threat” for Brazilian
“law enforcement capacity to investigate and prosecute foreign bribery”, despite the system
eectiveness has never been evidenced before.
Currently, a strange relationship seems to be clear: OECD needs to enforce integrity
and good corporate citizenship, creating a secure space for investments, but all of this
depends on fear and over discretion to use judicial institutions, including easy mechanisms
of conscation personal goods and monetary values (OECD, 2014: 31). is relation and
the consequences to Latin American countries’ democracies and fundamental rights are
now raising some good questions about how much can these countries keep giving up their
legislative sovereignty to OECD’s standards9. It looks clearer now that the internalization
of those standards should be better thought and worked inside Latin America (Miranda,
2019: 66-72).
In Brazil, companies that are now negotiating their plea guilty and handing over
politicians to authorities are the same that nanced many other authoritarian strategies
(Souza; Alencar, 2018), like military overthroughts over 1950s and 1960s10. It looks clear,
by now, that things have not changed for real and that the country needs to start a serious
race for eective and democratic way to ght corruption, avoiding both infractions to
fundamental rights and empty speeches that mean no real change in corporate behavior
(Saad-Diniz, 2019: 163-166).
CONCLUSION
ere are two important conclusions. e rst and hardest one, is that criminal policy
is not exactly democratic in Latin America. Only Chile, México and recently Colombia are
part of OECD, but this international organization has a central role on dening internal
legislation and public eorts in economic criminal law. Of course, OECD is only one of
the instruments that could be used by governments and transnational companies to push
global standards by their interest. In Europe, the European Council and the European Bank
8 As an example, the Article 21 of the Law declares to be a crime to “keep prisoners of both sexes in the same
cell or connement space”. In 2019, a former judge was declared guilty in an administrative process by the
Brazilian Superior Court, because of keeping a 15 years old girl in a cell with 30 grown-up men for 13 days at
least. e Judges of the Superior Court considered that this negligence was made on propose, but there was
no criminal liability to impose (Pompeu, 2019).
9
In Latin America, we should never ignore the eect of a peripheral economic role, which means: our structures
are not only designed by a few people that want to reach prots. Our structures are designed in obedience
to foreigners, which allow that few people reach their own prots. For a critical reading of the “dependence
theory”, see: (Machado, 1999).
10 See with details at: (Saad-Diniz; Sponchiado, 2017).
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may have their role too. However, Mercosul has no power to incentive regional measures
and projects compared to them. Any other regional organization in Latin America has no
impact either. Historically, it has been like this in a disarticulated and fragile scenario. Latin
America (as well as Africa and other peripheral economies) are not allowed to create their
own agenda, even to protect as one their internal market structures or their own regional
perspective of integrity. By this, it does not matter if Argentina and Brazil have dierent
strategies to regulate the same regional companies, because there is no interest on letting
a uid cooperation between both. ey must only obey local demands of transnational
business and any spontaneous change might be read as “serious threat”.
e second conclusion is that the criminal law expansion is an expected demand of
2010s neoliberalism, which has an agenda of integrity, compliance culture, accountability
and transparency just to articially select the “greenest”, the most “good citizen” and the most
“reliable” companies. Small corporations have no opportunity to accomplish big business,
but instead, only peripheral ones, which might play a small role with small prots in a long
supply chain. By this way, criminal law benets and privileges transnational companies with
non-empirically validated mechanisms of compliance and ethical behavior surveillance. In
this scenario, even if smaller companies try to survive, their compliance ineciency might
be considered by law as “serious threat”, mainly to public sector, responsible for half of big
contracts in Brazil, but currently starting to demand compliance programs as a condition
to be able to dispute public contracts. When the consequences are criminal themselves, it
is always needed to look to the situation with a bit more caution.
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ULOGA DRUŠTVA U BORBI PROTIV KORUPCIJE
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KORUPCIJA KAO „OZBILJNA PRETNJA“ U LATINSKOJ AMERICI:
ANALIZA NEDAVNIH ZAKONSKIH REFORMI U ARGENTINI I
BRAZILU U SVETLU OECD STANDARDA
Da bi se razumelo delovanje tržišta i njegovi zahtevi, neophodno je razumeti pre svega
pojedine ključne političko-ekonomske događaje koji su se odvijali tokom dvadesetog veka,
a naročito u njegovoj drugoj polovini. Ekonomski kriminalitet se značajno povećava nakon
krize koja se dogodila 1929. godine, a njegovi oblici se ubrzano razvijaju nakon sukoba 70-
ih i intenziviraju nakon skandala 90-ih godina dvadesetog veka. Ekonomsko krivično pravo
ne treba poistovećivati sa konzervativnom ekonomskom politikom, već zahtevom neoliber-
alističkih politika čiji je cilj vraćanje poverenja u poslovanje. U Evropi, Evropska komisija i
Evropska banka imaju ulogu u borbi protiv korupcije. Međutim, za razliku od njih Mercosul
nema moć da podstiče regionalne mere i projekte na nivou Latinske Amerke. Takođe, nijedna

301
druga regionalna organizacija u Latinskoj Americi nema sličnan uticaj.
Kriminalna politika u Latinskoj Americi nije ustrojena na demokratskim osnovama.
Samo Čile, Meksiko i odnedavno Kolumbija, su deo OECD-a, a upravo ova međunarod-
na organizacija ima centralnu ulogu u denisanju unutrašnjeg zakonodavstva i mera za
suzbijanje ekonomskog kriminaliteta. Zbog toga, krivično zakonodavstvo zemalja Latinske
Amerike transnacionalnim kompanijama, u smislu odsustva reakcije i krivične sankcije za
njihove nezakonite aktivnosti.
Ključne reči: korupcija, krivičnopravne procedure, ekonomski kriminalitet, Latinska
Amerika
Leonardo Simões Agapito, Matheus de Alencar e Miranda, Túlio Felippe Xavier Januário