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Leniency Policies in the Prosecution of Economic Crimes and Corruption / Introduction
Leniency Policies in the Prosecution of Economic Crimes and Corruption / Introduction
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1–16
Titelei/Inhaltsverzeichnis
1–16
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17–28
Introduction
17–28
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29–85
Chapter I – The development of leniency policies in Brazilian criminal justice and the contractualist approach to collaboration agreements
29–85
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1. Introduction
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2. The Brazilian procedural tradition and the recent development of leniency policies
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a. Competition law
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b. Criminal law
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3. The legal structure of Brazilian leniency policies
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a. The negotiation dynamic: consensual arrangements, written agreements and informal communication
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b. Terms of trade
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i. Benefits: immunities and reduction of penalties
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ii. Duties: cooperation with the investigations
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c. Signing and fulfillment of the agreement
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4. The inventive practice of collaboration agreements: development and judicial support
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a. Law in action, consensual innovations and the expansion of the room for negotiations
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i. Granting of benefits not provided for by law
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ii. Exact definition of imprisonment penalties
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iii. Package deals and “unified punishment”
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iv. The serving of imprisonment penalties in advance
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b. Contractual freedom, tailor-made arrangements and unique consensual solutions
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c. A new model of criminal procedure? Collaboration agreements and consensual criminal justice
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i. The binding effect of collaboration agreements: pacta sunt servanda in criminal procedure
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ii. The principle of “res inter alios acta” and the prohibition of legal challenges by third parties
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5. Conclusion: a contractualist approach to collaboration agreements
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86–112
Chapter II – Collaboration agreements and macro-delinquency in Brazilian recent experience: notable results in the prosecution of corruption networks
86–112
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1. Introduction
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2. Operation Car Wash
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3. Corruption networks
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a. Collective goods, diffuse losses
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b. Legitimate and sophisticated organizations
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c. Major impacts on social life
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4. Storming the castle: macro-delinquency, consensual justice and public support for leniency policies
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5. Conclusion: the will and the way for the practice of collaboration agreements
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113–149
Chapter III – Leniency policies: rationale, expectations and risks
113–149
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1. Introduction
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2. The rationale and expectations of leniency policies: optimal deterrence through increased detection and prevention
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a. Detection of crimes and gathering of evidence
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b. Prevention of illegal activities
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3. Principal-agent relationships, information asymmetry and the risks of leniency policies
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a. Misrepresentation of facts: under- and over-cooperation
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b. The dark side of leniency: amnesty effect, recidivism and the need for limits
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c. Distortion of incentives for enforcement authorities: leniency over-reliance, statistical boost and the overheated market for cooperation
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d. Gaming the leniency system: repeated games, sophisticated agents and reverse exploitation
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4. Conclusion: leniency revolution and leniency religion
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150–213
Chapter IV – Consensual exchanges in German criminal procedure: the practice of negotiated judgments and the crown-witness regulation
150–213
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1. Introduction
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2. Negotiated judgments: practice and regulation
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a. Search for truth, compulsory prosecution and consent in the German tradition
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b. Development of the practice of negotiated judgments
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c. Judicial acknowledgement
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d. The legislative regulation of negotiated judgments
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e. The 2013 ruling of the German Constitutional Court
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3. The general crown-witness regulation
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a. Development
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b. Structure
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c. Scope of application: investigative emergencies
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d. Investigative achievements, essential contributions and positive balances
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e. Inside and outside cooperators: the issue of the connection requirement
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4. Points of analysis
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a The prosecution of economic crimes: between consent and search for truth
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i. Negotiated judgments and crown-witness regulation: parallels and differences
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ii. Consent and search for truth: different answers to similar questions? Disenchantment and re-enchantment with truth-finding in criminal procedure
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b. Expansion of the negotiation forum, externalities and abstinence from the search for truth
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i. The tension over the boundaries of the room for negotiation and the troublesome taming of negotiated judgments
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ii. Negative externalities and abstinence from the search for truth
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iii. The 2013 ruling of the German Federal Constitutional Court and the case-law of the U.S. Supreme Court: unnoticed virtues?
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5. Conclusion
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214–277
Chapter V – Truth and consent in collaboration agreements: a rebuff to the contractualist approach
214–277
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1. Introduction
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2. The practice of collaboration agreements: incompatibility with Brazilian criminal justice and counterproductive effects
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a. Collaboration agreements as exceptional tools for investigative emergencies
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b. Due process, search for truth and the chain of events in criminal procedure
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c. Separation of functions in criminal procedure: the return of the inquisitorial process?
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d. Investigative achievements, information asymmetry and the risks of forward purchases in the practice of collaboration agreements
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3. Collaboration agreements as public-private partnerships within criminal justice: the privatization of truth-finding and its effect on third parties
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a. Triangular relationships, not bilateral transactions
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b. Collaboration agreements as mechanism of consensual justice? Disenchantment and reenchantment with truth-searching in criminal procedure
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c. Collaboration agreements as public-private partnerships and the privatization of official investigations
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d. Is there a Brazilian system of plea bargaining? Legal transplants, legal translations and legal counterfeits
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e. The contractual redesign of Brazilian criminal law
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4. The judicial control of collaboration agreements
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a. Pacta sunt servanda or nemo dat quod non habet? The issue of the binding effect
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b. Negative externalities, private gains and social costs: the distorted use of collaboration agreements as hedging mechanisms
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c. The overheated cooperation market and the problem of monopoly of selection: a case for broad and in-depth judicial control of collaboration agreements
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5. Conclusion: the contractualist approach from a comparative perspective
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278–318
Chapter VI – Legal consequences and practical implications
278–318
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1. Introduction
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2. Consequences
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a. The right of third parties to question collaboration agreements in court: protection of individual rights and of the public interest
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b. The array of leniency benefits: a case for numerus clausus
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c. The guarantee of equal treatment and the bazaar of punishment
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d. Disclosure and confidentiality: cooperators as the monopolists of truth
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e. Advanced enforcement of penalties and the paradox of investigating what has already been determined
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f. Preparatory acts, the control of the negotiation process and the duty to register
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3. Governing through white-collar crime: collaboration agreements and the fight against corruption
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a. Collaboration agreements, the anti-corruption movement and the dynamic of “governing through crime”
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b. Under the law, above the law
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c. Investigative achievements, failures and the effectiveness discourse: collaboration religion?
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d. The symbiotic relationship between collaboration agreements and the Brazilian anti-corruption movement
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4. Conclusion: a prosperous life for consensual mechanisms in Brazilian criminal justice
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319–322
Conclusion
319–322
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323–326
Annex – List of collaboration agreements analyzed
323–326
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327–345
References
327–345
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Leniency Policies in the Prosecution of Economic Crimes and Corruption , page 17 - 28
Introduction
Autoren
Francisco Schertel Mendes
DOI
doi.org/10.5771/9783748922599-17
ISBN print: 978-3-8487-7849-2
ISBN online: 978-3-7489-2259-9
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