BRAZIL Law and Practice Contributed by: Octaviano Duarte, Henrique Forssell, Marcelo Lucidi and Mayara Rahman Rufino, Duarte Forssell Advogados
3. Corporate Entities, Ultimate Beneficial Owners and Shareholders 3.1 Imposing Liability for Fraud on to a Corporate Entity The Brazilian Anti-Corruption Law imposes pen - alties on legal entities in cases of corruption or acts that harm the government and government assets, regardless of whether managers were held criminally liable. However, the law does not absolve managers or any other individuals, whether they are perpetrators, co-perpetrators or participants in the crime, from personal lia - bility. Punishment is based on the principle of strict liability, meaning that investigators are not required to prove that the legal entity intended to commit a crime. It is sufficient to establish a connection between the legal entity and the crime under investigation. The scope of the law encompasses all legal enti - ties, associations, and foundations with head - quarters, branches or representation in Brazil, regardless of whether this connection is tem - porary. Furthermore, leniency agreements may be offered to legal entities that voluntarily come forward and offer their co-operation with inves - tigations. 3.2 Claims Against Ultimate Beneficial Owners As a rule, a company’s liabilities are typically confined to its own assets. However, sharehold - ers or ultimate beneficial owners can be held liable in cases of “abuse of legal personality” , a legal concept referring to situations where the company is exploited as a vehicle for fraud.
may be compelled to provide evidence to the court through their testimony. Issuing the wit - ness summons is the duty of the lawyer and should be effected at least three days before the trial (Article 455, § 1º of the Civil Procedure Code). The court may issue the witness summons under certain circumstances, including: • if the lawyer’s attempt to summon the witness is unsuccessful; • if the need for the witness’s testimony is proven to the judge; • if the witness holds certain public positions; or • if the witness has been called by the Public Prosecutor’s Office or the Public Defender’s Office. Once properly summoned, the witness is obli - gated to attend the trial and truthfully answer questions posed by the judge or the parties. Additional Aspects It is worth noting that the witness may be entitled to refuse to answer questions based on certain privileges, such as legal professional privilege or privilege against self-incrimination. If the witness, summoned in accordance with legal requirements, fails to attend the hearing with - out a valid reason, they will be coercively con - ducted and will bear the costs of rescheduling the hearing (Article 455, § 5º of the Civil Proce - dure Code). Any breach of the duty to truthfully give testimony may render the witness criminally liable for perjury.
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