BRAZIL Law and Practice Contributed by: Octaviano Duarte, Henrique Forssell, Marcelo Lucidi and Mayara Rahman Rufino, Duarte Forssell Advogados
penalties, such as fines, prohibition from enter - ing into contracts with the public administration, prohibition from benefiting from special tax treat - ments and loss of public function, without preju - dice to claims seeking to obtain compensation for damage caused to the public administration. 1.2 Causes of Action After Receipt of a Bribe The following causes of action may be available in Brazil to a claimant whose agent has received a bribe. • Civil liability claims – Claimants may pursue civil liability claims under the Brazilian Civil Code, which provides remedies for damages caused by unlawful acts. A claimant whose agent received a bribe can seek compen - sation for losses suffered as a result of the agent’s actions. • Claims against officers and directors – Bra - zilian entities and shareholders can pursue damages against officers or directors who took bribes or misappropriated company funds. Law No 6,404/1976 (Brazilian Corpo - rations Law) allows companies to bring civil liability actions seeking compensation for losses caused by officers or directors. • Annulment of fraudulent transaction – Trans - actions involving bribery and illicit transfers of assets disguised as legitimate business pay - ments can be challenged through annulment actions under the Brazilian Civil Code. This allows claimants to void fraudulent transac - tions and recover assets obtained through bribery. • Criminal complaints – Claimants also have the option to file criminal complaints against pub - lic officials for bribery-related offences. Brazil - ian criminal law prohibits public officials from giving and receiving bribes, with individuals found guilty facing imprisonment and fines.
Private corruption, which involves bribery of private agents, is currently not punishable under Brazilian criminal law. 1.3 Claims Against Parties Who Assist or Facilitate Fraudulent Acts In Brazil, there are several legal claims available against parties who assist or facilitate fraudulent acts of another, such as the following. Accessory Liability Article 942 of the Brazilian Civil Code establishes that the assets of the individual or entity held lia- ble for the offence or violation of another’s rights will guarantee the payment of the losses caused; and, if the offence has more than one perpetra - tor, they will be jointly and severally liable for the compensation. Joint Liability With Officers and Directors Article 158 (§5) of the Brazilian Corporations Law imposes joint liability on individuals who concur in acts contrary to the law or by-laws with the intention of obtaining advantages for themselves or third parties, along with officers or directors. Participation in Bankruptcy Fraud Brazil’s Bankruptcy Law provides that claw- back actions (such as the revocatory actions and objective ineffectiveness actions discussed above) can be filed against all third parties who participated in the transaction, benefitted from it and/or knew of the debtor’s intention to harm the creditors. Participation in a Crime Under the principle of co-authorship in the Bra - zilian Criminal Code, individuals who directly participate in the commission of a crime are considered co-authors or co-perpetrators. The penalties for these individuals will depend on
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