Tese de Doutorado
Mecanismo de garantia de depósitos e investimentos no mercado financeiro brasileiro: análise jurídica do FGC
Autor
Felipe Fernandes Ribeiro Maia
Institución
Resumen
This thesis analyzes in its main aspects, the protection mechanism of the popular economy (depositors and investors of financial institutions), operated in Brazil by Credit Guarantee Fund - FGC, private legal entity (association). The mechanism basically consists in guaranteeing the deposits and investments in financial institutions in the case of enactment of special regimes (intervention and extrajudicial liquidation by the Central Bank of Brazil). The research seeks to investigate, under international recommendations conferred by the Basel Committee and the International Association of Deposit Insurers (IADI), the Brazilian Constitution of 1988 in its original wording (Article 192, VI) and in Brazilian law overall, if the structure and form of the mechanism (FGC) are aligned to current law, which purpose (public policy) and the nature of the legal obligation of the guarantee provided by the FGC, in order to contribute to improving the treatment and use the institute and hence to its regulation by Congress, which has not happened yet. Created in 1995, exclusively to protect the saver (paybox system), since 2008, has been used to provide financial assistance to financial associated institutions. In 2012, the CMN amended the Statute of FGC (Res. 4087), expressly to grant it with the financial liquidity assistance public policy. Among the general and specific objectives of the research, seeks to understand FGC inside the National Financial System (SFN) and financial institutions in Brazilian law, as well as other mechanisms of protection and security of the financial market (safety net). The concern is focused on the stability of the market and to protect savers. It seeks also to verify if your creation, regulation and standardization are legitimate and constitutional of the guarantee fund or not; if configures an insurance operation (or not) and, therefore, if it should be organized as an insurer or an institution financial; which limits (public policy); what purpose and function. The mechanism was designed by the economics and aims to financial system stability. There is a huge intersection between the disciplines (law and economics), but the answers were sought within the legal system and not the economy or the economic analysis of law. For this, the research adopted the perspective of the legal analysis of the economy and the conception of law as a closed system (binary code legal / illegal; law / non-law; fair / unfair, systems theory). The research drew upon various branches of science of law, such as civil, business, administrative, constitutional, procedural, and other fields of human knowledge (especially of Economy). The lack of consistency in the fundamentals of the guarantee scheme for deposits and investments have led to legal uncertainty and insecurity. A deeper insight into this institute will contribute to the review of the guarantee scheme in Brazil, to the stability of the financial system and especially for its proper format, providing social justice inherent Economic Order and protecting the savers.