Our Partner Daphne Minerbo published an article in Lex Legal Brasil on a decision of the 2nd Criminal Panel of the TRF-6 that changes the calculation for those still deciding between complying with the new mutual asset protection regime or ceasing activities.
Complementary Law No. 213/2025 gave entities that operated without authorization from Susep 180 days to choose between regularization and cessation. Paragraph 7 of Article 9, however, conditioned the extinction of criminal liability of managers for the crime under Article 16 of Law No. 7,492/1986 on proven "regularization," wording that, read restrictively, would leave out precisely those who followed the alternative the law itself allowed. In Criminal Appeal in the Strict Sense No. 6367889-56.2025.4.06.3800/MG, the Court reversed the first-instance decision and recognized cessation as legally compatible with the concept of regularization.
In practice
- The Panel found it incoherent to accept cessation as a lawful way of resolving the entity's situation while denying managers the criminal benefit reserved for regularization, relying on equal treatment and reasonableness.
- The scope is limited: a decision of a TRF panel, without binding effect, restricted to the offense under Paragraph 7 and to an entity that had ceased activities before the law was published. It is not a general safe-conduct for the sector.
- For associations registered within the deadline, the discussion is at a different stage. CNSP Resolution No. 491/2026 opened the adjustment to the definitive regime, with technical, operational, financial and accounting management by an administrator organized as a corporation (sociedade por ações) and previously authorized by Susep, and Paragraph 9 of Article 9 granted a new 180-day window to opt for cessation.
- The choice between continuing and closing is no longer merely a calculation of compliance cost, because the managers' personal exposure becomes part of the same assessment.
As Daphne summarizes, the precedent neither determines which path to take nor eliminates the need for an individual analysis of each entity, but it removes the premise that only continuing operations followed by completion of the adjustment would allow recognition of the extinction of criminal liability. For a market that is still forming its first regulatory and case law references, understanding the legal effects of each alternative is part of the business decision itself.
