A responsabilidade penal por omissão imprópria de membros do conselho de administração de sociedades anônimas em face de decisões tomadas por diretores: fundamentação e limites da posição de garantidor originário de vigilância

Abstract

This dissertation examines the theoretical foundations and normative limits of the guarantor position attributed to members of a corporation's board of directors, specifically concerning decisions made by executive officers. Beginning with a hypothetical case study, the analysis outlines the corporate governance structure under Brazilian law. It then delineates the respective duties and responsibilities of executive officers and the board of directors to clarify the distinct spheres of competence for each governing body. Subsequently, drawing on the legal framework for criminal liability for improper omission, the study explores the configurations of the guarantor position as established in the Brazilian Penal Code, considering its material and legal underpinnings. Using the criterion of "normative control"—or "dominion"—over the "enterprise" as a source of risk, the dissertation investigates the justifications for, and the limits of, attributing criminal liability for omission to a board member for misconduct by executive officers. The research argues that the board of directors' statutory powers—particularly its authority to set the general course of corporate affairs, dismiss executive officers, and supervise their conduct—provide the basis for a partial, yet legally relevant, dominion over the corporate risk structure. Consequently, these powers can justify assigning an original oversight-based guarantor duty to board members, giving rise to potential criminal liability in cases of culpable omission regarding managerial decisions.