The Brazilian Anti-Corruption Law: A New Way to Control the Relationship between Public Administration and the Private Sector

Author:Eneida L. Salgado - Ana C.A. Viana - Emerson Gabardo
Position:Universidade Federal do Paraná - Universidade Federal do Paraná - Pontifícia Universidade Católica do Paraná and Universidade Federal do Paraná
Pages:397-421
SUMMARY

Corruption is a very serious problem in Brazil. Since 1990, more than 50 laws have been enacted to combat misuse of public resources. Law 12.846, that entered in to force in 2013, has been commonly known as the "Corporate Anti-Corruption Law." Despite the traditional moral system, Law 12.846/2013 emphasizes private entities, which refreshes the Brazilian legal scheme of anti-corruption programs.... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2019 e Institute for Migrant Rights Press
thE BraZilian anti-Corruption laW:
a new way To conTrol The relaTIonshIp beTween
pUblIc aDmInIsTraTIon anD The prIvaTe secTor
Eneida Desiree Salgado
Universidade Federal do Paraná
Ana Cristina Aguilar Viana
Universidade Federal do Paraná
Emerson Gabardo
Pontifícia Universidade Católica do Paraná and Universidade Federal do Paraná
E-mail: emerson.gabardo.br@gmail.com
Corruption is a very serious problem in Brazil. Since 1990, more than 50 laws have been
enacted to combat misuse of public resources. Law 12.846, that entered in to force in
2013, has been commonly known as the “Corporate Anti-Corruption Law.” Despite the
traditional moral system, Law 12.846/2013 emphasizes private entities, which refreshes
the Brazilian legal scheme of anti-corruption programs. In addition, it focuses on pre-
vention. us, the objective of this paper, is to examine the main characteristics of this
law, especially those that are dierent from the traditional Brazilian norms and seems
to present weaknesses. It seeks to analyze whether the distinct rationality brought within
the general scope of normative behavior is actually achieved in the law’s provisions. e
methodology of the work is logic-deductive through examination of the law itself. e
analysis is divided into three sections. First, the paper presents the context in which the
law was promulgate, and sequentially, indicates the scope of the proscribed conduct and
the judicial and administrative processes of punishment set forth the law. Further, the
paper analyzes the doctrines of objective responsibility and the independence of transac-
tions and occurrences. In addition, the paper critically examines the application of the
law to foreign entities. e nal section points out the important role that the Law has
played spreading the culture of integrity, in an embryonic stage in connection with the
law’s enactment. ere are several shortcomings in the law, especially in the administra-
tive procedural aspects and in the independence of instances, both of which should be
considered and improved in this construction of new rationality.
Keywords: Anti-corruption Law, Brazilian Public Administration, Private Firms, Administra-
tive Process, Civil Liability.
VI Indonesian Journal of International & Comparative Law 397-421 (July 2019)
398
Salgado, Viana, & Gabardo
INTRODUCTION
e issue of corruption is part of daily life for Brazilians. Cases of em-
bezzlement of public resources, misuse of the administrative agencies
among others, constitute a sense of collective malaise. e recent Bra-
zilian political history corroborates this perception, its citizens regu-
larly observe dishonesty as something cultural in the country. Not by
chance, more than 50 laws have been enacted in Brazil since the 1990s
to combat the misuse of public resources. e vast majority of them
have focused on public servants, who are seen and treated by the media
as the primary actors in corrupt practices.1
Law 12.846, that was enacted in 2013, considered one piece of
legislations that forms the Brazilian legal system against immorality,2
has some singularities that makes it dierent from other laws. First,
the legislation establishes an innovative mechanism of enforcement,
focusing on companies that have historically contracted with the
Public Administration. e law does not, however, create an automatic
correlation between immoral acts and public agents. It represents a
new way of combating corruption. In this way, the Anti-corruption
law, emphasizing private entities, refreshes the Brazilian legal system
of anti-corruption.
Secondly, it imposes a type of preventive control, in addition to
and dierent from other Brazilian laws, which consist primarily of
repressive sanctions.3 In eect, it represents a new breed of public
law. Traditionally, administrative law had been governed by the
bureaucracy of the State, and based on authoritarian acts. is idea
1. Study made by Leonardo Avritzer e Fernando Filgueiras has revealed 51 laws
related to combat corruption in Brazil. 65 % are about burocratic-administra-
tive control. F F  L A, C 
C   Bl 2 (2013).
2. Diogo de F. Moreira Neto & Rafael V. Freitas, A juridicidade da Lei Anticor-
rupção, 156 R  I P: R F
A 4, 4 (2014).
3. Egon Bockmann Moreira & Andreia Cristina Bagatin, Lei Anticorrupção e
quatro de seus principais temas: Responsabilidade objetiva, desconsideração so-
cietária, acordos de leniência e regulamentos administrativos, 47 R 
D P  E, 55, 78 (2014).

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