Duty to cooperate and noncompliance theory: legal basis and limitations of criminal liability for gatekeepers in money laundering

• Grant number: 13/25253-9
• Support Opportunities: Scholarships in Brazil - Doctorate
• Start date: July 01, 2014
• End date: June 30, 2016
• Field of knowledge: Applied Social Sciences - Law - Public Law
• Agreement: Coordination of Improvement of Higher Education Personnel (CAPES)
• Principal Investigator: Pierpaolo Cruz Bottini
• Grantee: Ana Carolina Carlos de Oliveira
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil
• Associated scholarship(s): 14/21357-7 - Duty to inform and the gatekeepers' criminal liability, BE.EP.DR

Abstract

The recent reform of the Money Laundering Crimes Act in Brazil has added new rules of care and duties to inform, which shall be put into effect by individuals who are particularly sensitive to the crime. These duties to inform correspond to a punishable duty to cooperate, imposed on a specific group of citizens, which are the focus of this research project. With this context in mind, we shall investigate the feasibility of creating these duties to cooperate (setting our focus on the duties to inform as stated in the Money Laundering Act), as well as their limits. We shall investigate whether the institutional post held by a specific group of perpetrators (the so-called "sensitive individuals") legitimizes the creation of duties and, furthermore, if the concept of institutional duty can be added to the theory of the legal asset for the setting up of the criminal offence of money laundering. This procedure shall be undertaken with the goal of enriching the theory of the legal asset with new normative concepts so as to underpin economic offences through the laying out of institutional duties. The theory of duty infringement crimes shall provide our theoretical framework, as well as the dogmatic interpretations of the duties to ensure derived from institutional ties. In accordance with said theory, duties to cooperate as possible basis for criminal liability in the participation through omission or participation through wrongful conduct shall be analyzed. Our main hypothesis holds that responsibility derived from performing an institutionally specific task can aid in the drawing of more precise limits to criminal liability in the crime of money-laundering and in economic crime in general. (AU)