A tutela penal do insider trading no Brasil: obstáculos à persecução criminal

Abstract

This paper critically examines the criminal regulation of insider trading in the Brazilian legal system from an interdisciplinary perspective that integrates Economic Criminal Law, Law and Economics, and regulatory theory. While acknowledging the potential harm of insider trading to the integrity of capital markets and to the trust required for their proper functioning, the study challenges approaches that uncritically legitimize criminal punishment as the primary regulatory response. It argues that the centrality of criminal law in the repression of insider trading is structurally ineffective, due to the inherent evidentiary difficulties of informational crimes, the selective nature of criminal prosecution, and the predominantly symbolic character of criminal sanctions in this context. By analyzing the systemic effects of informational asymmetry and the economic ambivalence of insider trading, the paper demonstrates that criminal law is incapable of acting preventively on the actual mechanisms of price formation in capital markets. Accordingly, it defends the reordering of state intervention through a responsive regulation model, in which specialized administrative enforcement—particularly by the Brazilian Securities Commission (CVM)—assumes a leading role, while criminal law is reserved for the most serious cases, in line with the principle of minimal intervention. The study concludes that effective protection of the economic order requires technically qualified, proportionate, and institutionally coherent regulatory strategies, under penalty of perpetuating a merely symbolic model of criminal enforcement.