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Law nº 9447, of March 14, 1997


LAW Nº 9447, OF MARCH 14, 1997

 

Disciplines the joint responsibility of holders of financial institutions submitted to the regimes instituted by the Law nº 6024, of March 13, 1974 and by the Decree-law nº 2321, of February 25, 1987; the inalienability of their properties; the responsibility of the independent audit companies or of the  independent auditors; the sale for private sector of  institutions whose shares have been  expropriated, in accordance with Decree-law nº 2321, of 1987, and takes other measures.

 

 

 

I notify that the President of the Republic adopted the Provisional Measure nº 1470-16, of 1997, the National Congress approved, and I, Antonio Carlos Magalhães, President, for the effects of the dispositions of the sole paragraph of Article 62 of the Federal Constitution, ratify the following Law:

Article 1 ‑ The joint responsibility of holders of financial institutions established by article 15 of Decree-law nº 2321, of February 25, 1987, is also applicable to the regimes of intervention and extra-judicial liquidation instituted by the Law nº 6024, of March 13, 1974.

Article 2 ‑ The disposition of the Law nº 6024, of 1974, and of the Decree-law nº 2321, of 1987, concerning the inalienability of properties, is also applicable to the properties of those persons or legal entities who holds, directly or indirectly, the control of institutions submitted to the regimes of intervention, extra-judicial liquidation or temporary special administration.

Paragraph 1 ‑ In order to preserve the normality of economic activity and the creditors interests, Banco Central do Brasil, by decision of its Board of Governors, may exclude the inalienability of assets belonging to legal entities which hold the control of financial institutions submitted to the special regimes.

Paragraph 2 ‑  The properties exempt, by current law, to be alienated or burdened, shall not be affected by the inalienability established in this article.

Paragraph 3 - The inalienability established by this article shall not obstruct the alienation of controlling powers, the spin-off, consolidation or mergers of the institution submitted to the regimes of intervention, extra-judicial liquidation or temporary special administration.

Article 3 ‑ The inquest established by article 41 of Law nº 6024, of 1974, concerns also the investigation about the acts performed and the omissions incurred by the persons or legal entities responsible for independent auditing services to the institutions submitted to the  regimes of intervention, extra-judicial liquidation or temporary special administration.

Sole Paragraph - If the inquest comes to a decision based on the negligence  or fraud involving the persons appointed in this article, the dispositions of the final part of article 45 of Law nº 6024, of 1974, shall be applicable.

Article 4 ‑ Besides the hypothesis mentioned in the article 1 of the Decree-law nº 2321, of 1987, the Banco Central do Brasil may decree the special temporary administration regime whenever verified the situations mentioned in article 215 of Law nº 6024, of 1974.

Article  5 ‑ Whenever are verified the hypothesis mentioned in articles 2 and 15 of Law nº 6024, of 1974, and in article 1 of Decree-law nº 2321, of 1987, Banco Central do Brasil may determine the following measures, in order to preserve the normality of the public economy and to protect the interest of depositors, investors and creditors, without prejudice to the subsequent adoption of the regimes of intervention, extra-judicial liquidation or special temporary administration:

I - the capital improvement to the society, by an outlay of the necessary  resources to its raise, in an amount fixed by Banco Central do Brasil;

II - the transference of the shareholding control;

III - the reorganization of the society, even through processes of merger, consolidation or spin-off.

Sole paragraph - If the measures mentioned in this article are not adopted during the term fixed by Banco Central do Brasil, the adequate special regime shall be decreed.

Article 6 - In order to protect the public economy and the interests of depositors and investors, the intervenor, the liquidator or the Directors Council of the institution submitted to the regimes of intervention, extra-judicial liquidation or temporary special administration, upon prior and express approval of the Banco Central do Brasil, may adopt the following measures:

I - to transfer assets, rights and liabilities of the company or of its businesses, isolatedly or together, to other society or societies;

II - to alienate or to assign assets and rights to third parties and to agree with the assumption of its liabilities by other societies;

III - to work on the constitution or on the reorganization of a society or societies to which the assets, rights and liabilities of the institution submitted to intervention, extra-judicial liquidation or temporary special administration shall be transferred, partially or as a whole, in order to permit the general or partial continuity of its business or activities.

Article 7 - The implementation of the measures mentioned in the former article and the achievement, in any way, of the regimes of intervention, extra-judicial liquidation or temporary special administration shall not affect:

I - the pursuance of the inquest opened to ascertain the responsibility of shareholders, ex-managers and members of corporate committees and of persons or legal entities responsible for granting independent auditing services to the institutions submitted to the regimes of Law nº 6024, of 1974, and of Decree-law nº 2321, of 1987.

II - the legitimacy of the public prosecutor to pursue or to commence the processes established by articles 45 and 46 of the Law nº 6024, of 1974.

Article 8 - The intervention and the extra-judicial liquidation of financial institutions  may also be conducted, at the discretion of the Banco Central do Brasil, by legal entities.

Article 9 - Once an administrative process is opened against a financial institution, its managers, members of corporate committees, independent audit company or independent auditor, and considering the gravity of the fault, Banco Central do Brasil may take the following preventive measures, upon decision of its Board of Governors:

I - determine the removal from office of the persons under investigation from the management of the institution's business, while the investigation of his responsibilities is in progress;

II - to prevent those persons under investigation from assuming any role of direction or management of financial institutions, or from acting as representative or agent of directors or managers;

III - impose restraints to the activities of the financial institution;

IV - determine to the financial institution the substitution of the independent audit company or the independent auditor;

Paragraph 1 - The decisions taken under the terms of this article by the Banco Central do Brasil are subject to appeal, with no suspensive effect, to the Council of Recourses of the National Financial System, within a period of  five days.

Paragraph 2- If the administrative process is not concluded, in the range of Banco Central do Brasil, within the period of 120 days, the preventive measure shall lose its effectiveness.

Paragraph 3 - The dispositions of this article are applicable to any other  institution authorized to operate by Banco Central do Brasil.

Article 10 - The alienation of shareholding control of  financial institutions whose shares are expropriated by the Federal Republic of Brasil, under the terms of Decree-law nº 2321, of 1987, shall be made upon public offering, according to previously fixed rules, being assured the equality to all the competitors.

Paragraph 1º - The expropriation decree shall fix, in each case, the term to alienate the shareholding control, and this term may be extended for a period which shall be no longer than the first.

Paragraph 2 - Once the share are expropriated, the temporary special administration regime shall proceed, until the transference of the shareholding control is concluded by the Federative Republic of Brasil.

Article 11 - The financial institutions whose shares are expropriated by the Federative Republic of Brasil shall obey, for all purposes, the rules and laws applicable to the private companies, until the alienation of its shareholding control.

Article 12 - The lending fulfilled according to the rules of the Program of Incentives to the Restructuring and Strengthening of the National Financial System - PROER, may be collateralized by rights or securities related to transactions under responsibility of the National Treasury or of entities belonging to the Federal Public Administration.

Sole paragraph - The nominal value of collateral instruments shall exceed in at least 20% the collateralized amount, except in cases when those instruments  are papers emitted upon the federal public obligations, and sold in competitive auctions.

Article 13 - Whenever a financial lending is effected under the rules of the PROER, the Banco Central do Brasil shall opportunely transmit to the Economic Issues Commission of the Federal Senate, in each case, the following information:

I - the reasons why the financial institution required its inclusion in the range of the Program;

II - the value of the lending;

III - the information comparing the financial charges of the PROER and those paid, on the average, by the Banco Central do Brasil as a seller of bonds in the market;

IV - the collateral warranties accepted and its value, in comparison with the lending approved.

Article 14 - Articles 22 and 26 of Law nº 6385, of December 7, 1976, shall be in force with the following changes:

"Article 22 .............................................................................................         
Paragraph 1º - The Securities Exchange Commission is competent to establish directives applicable to the open corporations concerning:               
  .................................................................................................................         
Paragraph 2 - The dispositions of items II and IV of the preceding paragraph shall not be applicable to the financial institutions and other societies authorized by the Banco Central do Brasil to operate, those ones continuing to be submitted to the dispositions of Law nº 4595, of December 31, 1964, and to the normative measures following that Law."

"Article 26      ..........................................................................................

Paragraph 3 - Without prejudice of the dispositions of the preceding paragraph, the independent audit companies or the independent auditors shall respond before the administrative authority of Banco Central do Brasil for the acts they have practiced or for the omissions they have incurred, during their activities of auditing the financial institutions and other institutions authorized to operate by the Banco Central do Brasil.

Paragraph 4 - In the hypothesis of the preceding paragraph, the Banco Central do Brasil shall inflict to the transgressors the penalties mentioned in Article 11 of this Law"       

Article 15 - The acts performed according to the Provisional Measure nº 1470-15, of January 17, 1997, are hereby ratified.

Article 17 ‑ This Law shall takes effect on the date of its publication.

National Congress, March 14, 1997; 176th year of the Independence and 109th year of the Republic.

Senator ANTÔNIO CARLOS MAGALHÃES
President of the National Congress

This is not an official translation. For information purposes only.

BANCO CENTRAL DO BRASIL