The Third Section of the STJ, unanimously, understood that the simulation of a consortium through an award-winning sale, operated without authorization from the Central Bank of Brazil, constitutes a crime against the financial system, typified by art. 16 of Law no. 7.492 / 1986, which attracts the jurisdiction of the Federal Court. The decision, drawn up under CC 160,077-PA, was made available in the Informative of Jurisprudence nº 637.

 

Simulate a consortium through an award-winning sale

 

Simulate a consortium through an award-winning sale

The controversy is focused on whether the “prize-winning sale” of motorcycles can be considered a consortium simulation, so that the conduct described in the complaint can be subsumed under the incriminating criminal types described in Law no. 7,492 / 1986, among them, the crime typified in art. 16, consisting of operating financial institution, without the proper authorization. Preliminarily, it should be noted that in a study of STJ jurisprudence, a change of understanding is verified in a short period of time. The precedent of the Third Section, CC 121.146 / MA, of the report of Min. Sebastião Reis Júnior, of June 2012, states that “operations denominated prize purchase or prized sale – characterized by the promise of acquisition of goods, with payments of monthly contributions and drawings, whose beneficiaries are exempt from complying with the remaining installments – do not constitute financial activities for purposes of incidence of Law no. 7,492 / 1986 “. On the other hand, there are precedents in habeas corpus , in the sense that the winning purchase – even if carried out without authorization from the Central Bank of Brazil and even not characterizing a pure consortium – is a simulacrum of a consortium, which captures and administers a third party appeal, in order to fit the criminal type provided in art. 16, caput , of Law no. 7,492 / 1986. Having made a jurisprudential view of the STJ on the subject, it is observed that the best position is that the simulation of a consortium through an award-winning sale, operated without authorization from the Central Bank of Brazil, constitutes a crime against the financial system, be determined by the Federal Court. In addition, even if there is no perfect identity between the prize-winning sale and the consortium, it is clear that this is not a common sale, as legal entities raise funds from third parties and can therefore be considered a financial institution in accordance with art. 1 of Law no. 7,492 / 1986. Thus, the absence of authorization from the Central Bank of Brazil does not eliminate the practice of crime against the financial system, on the contrary, it is precisely a constant element in the type described in art. 16 of Law no. 7,492 / 1986. (INFORMATION OF WHOLE CONTENT)

Menu of CC 160.077-PA

 

NEGATIVE CONFLICT OF COMPETENCE BETWEEN STATE JUSTICE AND FEDERAL JUSTICE. POLICE SURVEY. PREMIUM SALE. CAPTION OF THIRD PARTY RESOURCES. EQUIPMENT THE FINANCIAL INSTITUTION. ABSENCE OF AUTHORIZATION OF THE CENTRAL BANK. CHARACTERIZATION, IN THESE, OF THE CRIME DESCRIBED IN ART. 16 OF LAW N. 7.492 / 86. COMPETENCE OF FEDERAL JUSTICE. 1. The present negative conflict of jurisdiction must be known, as it is an incident established between judgments tied to distinct Courts, under the terms of art. 105, item I, letter “d” of the Federal Constitution – CF. 2. The core of the dispute is whether the “prize-winning” sale of motorcycles can be considered as a simulation of a consortium so that the conduct described in the complaint can be subsumed under incriminating criminal offenses described in Law no. 7492/86, among them, the crime typified in art. 16, consisting of operating financial institution, without the proper authorization. In other words, it is argued whether there would have been, in theory, a practice of estelionato – having as its victim exclusively private individuals – or the practice of crime that affects the financial system. 3. The winning sale – even if carried out without the authorization of the Central Bank of Brazil and not even characterizing a pure consortium – is a simulation of a consortium that captures and manages resources of third parties, in order to fit the type provided for in art. 16 of Law no. 7492/86. The fact that the contemplated individual no longer needs to pay with installments demonstrates only the high risk of the business, given the possibility of not being able to join another person to sustain the viability of acquiring the assets. 4. In addition, even if there is no perfect identity between the prize-winning sale and the consortium, it is clear that it is not a common sale, since legal persons can raise funds from third parties and can therefore be considered a financial institution content of art. 1 of Law no.