O arranjo jurídico-institucional dos fundos patrimoniais: uma análise de legislação comparada entre Brasil e EUA

Abstract

Endowment funds are instruments built with the aim of strengthening the financial sustainability of civil society organizations and can be interpreted as factors for the concretion of fundamental rights. The institute has paradigmatic experience in the legal-institutional arrangement in the United States, where federal tax incentives are foreseen in the Internal Revenue Code and rules related to management and investment and spending policies in the Uniform Prudent Management of Institutional Funds Act. Distinctly, in the legal-institutional arrangement in Brazil, endowment funds were provided for by Lei n.º 13,800/2019, with centrality in hard rules on the management and governance structure adopted. Given the distinctions between the arrangements, it is investigated how an analysis of comparative legislation between Brazil and the United States on the legal-institutional arrangement of endowment funds can contribute to raising funds to finance fundamental rights. For this purpose, a functional comparative method of procedure is used, with microcomparison investigation and documentary and bibliographical research. At first, the concepts of endowment funds, legal-institutional arrangement and transaction costs are presented, which underlie the emphasis on incentives provided in areas considered fundamental for raising funds for the cost of rights. Under this approach, the legal-institutional arrangements of endowment funds in the legal systems of Brazil and the United States are analyzed. Finally, a critical examination is carried out on the previous comparative exercise, considering the existing distinctions between both arrangements. It is concluded that a research of comparative legislation between Brazil and the United States of America on the legal-institutional arrangement of endowment funds contributes, from the perspective of raising funds with a view to cost of rights, by highlighting similarities and differences between the local arrangement and a paradigmatic experience around the institute, in order to visualize what is current in the regulation of key areas to encourage the creation of endowment funds, the making of donations, and the carrying out of investment by and/or through such funds.