O insider trading no direito penal econômico: a (des)necessidade do tratamento jurídico-penal outorgado ao uso indevido de informações privilegiadas no mercado de capitais

Abstract

The objective of this study is to offer conceptual insights, under the bias of the Economic Criminal Law, to Insider Trading, as an instrument for manipulating the securities market. Going through a historical analysis of the evolution of the criminal type in question, it is sought to elucidate the reasons that made it necessary, first in the American context and later in Brazil, the fight against the misuse of privileged information in the capital market. It is necessary to assert that, in making a necessary analysis of the legal classification of the delinquent conduct evidenced by Article 27-D of Law 6,385/76, it is important to interpret in this study whether criminal intervention, as a manifestation of the most drastic social control of the State, is really legitimate, efficient and, above all, necessary. Finally, it aims to trace conceptual perimeters to the Sanctioning Law, as an alternative sanction, evidencing its practical feasibility in the fight, whether preventive or repressive, to Insider Trading in the phatic-legal context, as a mechanism not only to maintain investor confidence in the capital market, as well as security, transparency and suitability of the securities market.