Non-prosecution agreement in insider trading during the CVM’s sanctioning administrative process: new perspectives from the principle of independence between criminal and administrative instances

Abstract

This article presents a study on how the principle of independence between the criminal and administrative instances operates in cases involving the offer of a non-prosecution agreement to individuals investigated for insider trading before the conclusion of the sanctioning administrative process before the CVM (Brazilian Securities and Exchange Commission). The central idea, based on the methodology of the principle of proportionality, is that the offer of the non-prosecution agreement before the conclusion of the administrative sanctioning process will only be valid if it is aimed at achieving a constitutionally legitimate interest, constitutes the least burdensome means to achieve it, and produces legally more relevant results than the restrictions on the fundamental rights imposed on the investigated party. The article is grounded in two theoretical perspectives extensively developed by Professor Luís Greco, who is honored in this journal: (i) the understanding of the modalities of administrative accessory and their relationship with defining the scope of the prohibition of the criminal norm, and (ii) the scrupulous use of the proportionality parameter in identifying the legitimacy of imposing, previously authorized by the legislator, restrictions on the fundamental rights of the investigated and accused in the criminal field.