THE (IN)EFFICIENCY OF NATIONAL LEGISLATION IN COMBATING INSIDER TRADING PRACTICES

Abstract

The objective of this scientific article focuses on an approach to the ineffectiveness of national legislation in combating the practice of insider trading. It is understood that insider trading consists of the conduct of obtaining privileged and advanced information from the financial and securities markets, for the purpose of conducting business and obtaining undue and illicit advantages, to the detriment of other shareholders, partners and investors. Thus, in view of the constant practice of this crime, the national legislator sought to address this issue and repress this practice through the content present in article 27-D of Law No. 6,385/76, Law No. 10,303/2001 (called the “Law of Public Limited Companies”) and Instruction 358/02 from the Brazilian Securities and Exchange Commission (CVM). In view of this controversy, the following problem arises: is modern legislation capable of acting efficiently in combating the practice of insider trading? To present a hypothesis to the problem raised, it is understood that, despite the existence of normative and instructive elements that address insider trading, these are still ineffective, especially in the combative sphere of this activity. The general objective of the research is to demonstrate that the national legislation is not capable of dealing properly with the practice of insider trading and the forms of punishment to the detriment of the offending agents. In view of the entire study carried out, it is consistent with the position adopted by Brazilian doctrine and jurisprudence, that is, despite these being important legal mechanisms, there is an urgent need to create specific legislation that will cover the aforementioned crime and all its details (classifications, punishments in the criminal, administrative and civil spheres), as well as the stipulation of other forms of proving this conduct. As for the methodology, emphasis is placed on the use of bibliographic, doctrinal and jurisprudential sources, being a topic with qualitative research criteria and predominantly theoretical.