A construção de um regime jurídico para o acordo de não persecução civil envolvendo empresas

• Ano de defesa: 2025
• Autor(a) principal: Leal Junior, João Carlos
• Orientador(a): Cavali, Marcelo Costenaro
• Banca de defesa: Cavali, Marcelo Costenaro , Santos Júnior, Walter Godoy dos , Araujo, Valter Shuenquener de , Kanayama, Rodrigo Luís , Muniz, Tania Lobo
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Universidade Nove de Julho
• Programa de Pós-Graduação: Programa de Pós-Graduação em Direito
• Departamento: Direito
• País: Brasil
• Palavras-chave em Português: improbidade administrativa; acordo de não persecução civil; regime jurídico; direito administrativo sancionador; consensualidade; empresas
• Palavras-chave em Inglês: administrative misconduct; civil non-prosecution agreement; legal framework; sanctioning administrative law; consensuality; corporations
• Área do conhecimento CNPq: CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: http://bibliotecatede.uninove.br/handle/tede/3842

It investigates the civil non-prosecution agreement within the Brazilian Administrative Misconduct Law, with an emphasis on its application to corporations. The research is grounded in the observation that consensuality in Sanctioning Administrative Law is a consolidated and irreversible phenomenon, requiring doctrinal deepening and normative densification to ensure conformity with constitutional principles and effectiveness in the protection of administrative probity. The study is justified by the identification of significant normative gaps when the agreement involves corporate entities, generating legal uncertainty and compromising equality in the treatment of analogous situations. The investigation adopts a deductive methodology, employing descriptive research and legislative, bibliographic, and jurisprudential analysis of the Brazilian superior courts, seeking elements for the development of specific parameters for the topic. Thus, it examines the defense of administrative probity in Brazilian law, analyzing the origin and evolution of this constitutional value, the impacts of corruption on human rights, and the role of oversight agencies within the control architecture outlined by the 1988 Constitution. Furthermore, it addresses the rise of consensus in Sanctioning Administrative Law, discussing the consensual paradigm of Public Administration, the historical dogma of the absolute unavailability of the public interest which previously prohibited settlements in matters of misconduct, and the appropriate means of conflict resolution, including leniency and plea bargain agreements. Subsequently, it specifically analyzes the civil non-prosecution agreement in Brazilian law, outlining its conceptual contours, legal nature, object, form, legitimacy, prerequisites, and conditions, as well as the consequences of compliance and non-compliance. Finally, it develops the legal framework of the agreement with a special focus on its execution by corporate entities, examining the contemporary role of corporations, corporate corruption, and its place within the system of accountability for administrative misconduct. It investigates the absence of specific legal criteria for agreements involving corporations and their repercussions on due process and legal certainty; assesses the infra-legal regulations issued by the National Council of the Public Prosecutor's Office and by the state and federal Public Prosecutor's Offices; identifies gaps in the treatment of corporate liability; and proposes parameters for the execution and dosimetry of agreements. The study develops a sanction dosimetry matrix inspired by international experiences, establishing objective criteria for civil fines and periods of debarment from public contracts. It examines the adoption of integrity mechanisms as a contractual obligation and the application of incentive-based sanctions to encourage desired corporate behaviors. It analyzes relevant legal-corporate aspects, including corporate resolutions and the delimitation of liabilities. The research investigates the quantification of damages and divergences among oversight bodies, especially in light of the preliminary suspension of the mandatory hearing by the Courts of Accounts, and systematizes the forms of control over the agreement. This work aims to contribute to the construction of a system that reconciles legal certainty with repressive effectiveness, recognizing that corporations, as economic agents that perform a constitutionally recognized social function, require differentiated treatment that considers their specificities without compromising the protection of administrative probity.