Critical appraisal of the application of the consent decree as a regulatory instrument of capital market

Abstract

Supported by literature research, document and data collection, it is carried out an approach to the legal regulation of capital market, based on the review of regulatory instrument known as consent decree. It was noticed that, in accordance with Article 11, § 5º of Law Nº. 6.385/76, the rules issued by Brazilian Securities and Exchange Comission (CVM), which governs administrative sanctioning proceedings in ordinary and summary rites, prescribe that, when summons to an accused, a warning they may propose a term of commitment will follow. Anyways, once an offer is accepted and an agreement is in place, it does not imply into a confession to the facts nor a recognition of the illicit nature of investigated conduct. As of the examination of already established administrative sanctioning proceedings between 2009 and 2014, it is found total number of 405 terms approved by the regulator, results that feature a wide use of this regulatory instrument. From all that is analyzed, it is concluded that, although such an agreement can be recognized as an important mechanism in the context of capital market regulation, its excessive use implies to a distortion of its purposes, of foundations of normative discipline of the market, and of the set of functions assigned to the CVM.