[Law Exchange] Criminal compliance system based on the theory of unit crime

Focusing on the hot spots of criminal compliance theory, in principle research on the perspective of the basic theory of criminal compliance, filling in the lack of domestic basic theory of criminal compliance systemic systemic basic theory-

Based on unit crime theory

Construction of criminal compliance system

From the perspective of punishment, whether it is the compliance management of the previous type or the compliance management system of the post -event type, it is the plot that affects the prevention of torture, thereby guiding the criminal compliance system that is responsible to reduce the type. Through the comparison and reflection of various views, the legitimacy foundation of criminal compliance is basically responded.

This book proposes that the truly implementation of the compliance plan is based on the policy of strict crime. The more severe the punishment, the more likely it is to promote corporate cooperation. It is considered that severe punishment is not a purpose, but to promote self -management through external pressure. Therefore, criminal compliance is not a crime of indulgence. These burning opinions are also of great significance to the implementation of the criminal compliance system.

Professor Sun Guoxiang, a professor at Nanjing University Law School

Although the introduction of criminal compliance in China is not long, it soon becomes a theoretical hotspot in the legal community. Most of the results have found that most of these achievements focus on the discussion of conceptual discussions and how to construct, and there are not many achievements in the basic theoretical research of criminal compliance. To what is the criminal compliance, criminal compliance is only a criminal policy or a criminal law system. Whether criminal compliance should be integrated into the doctrine of criminal law. The confusion caused by these issues has not been found. Many scholars realize that the development of criminal compliance urgently needs a basic understanding of the basic theory of criminal compliance, and urgently needs to build a basic theoretical framework. It is based on this background that the publication of Professor Li Bencan's "Basic Theory of Criminal Compliance" has filled the lack of domestic and basic theory of criminal compliance systemic basic theory.

This book conducts principles based on the basic theory of criminal compliance. The following aspects are particularly impressed.

First, the comparison of this book is solid. The starting point of any research is inseparable from the retrospective and thinking of existing theories and practice. This book starts from criminal compliance and introduces the practice of criminal compliance outside the territory. The criminal compliance theory and practice of the United States, Britain, Italy, Germany, Japan, and France, etc., focused on the formation and model of criminal compliance in the United States. Of course, the back trace is not a trivial list. This book summarizes different types of criminal compliance. It is believed that criminal compliance can be divided into: as illegal/liability barriers, torture incentives, prosecution incentives, and criminal compliance with compliance as a personal responsibility. Combined with my country's criminal law and judicial practice, these four types have already had certain practice in my country's judicial practice. This classification can be described as clear and fine. Through comparison, this book analyzes the effectiveness of the effectiveness of the compliance plan. It is believed that although countries' standards for the effectiveness of compliance plans are not uniform, the compliance plan must fully show that the company's due diligence and discovery of illegal crimes must be fully displayed. This is mainly reflected in the reasonable design, full implementation and implementation of compliance programs. At the same time, the scale of enterprises, the nature of the enterprise, and the history of illegal crimes are also an important reference factors in the design of the compliance plan. The compliance plan needs to be targeted. It is a solid comparison that laid the foundation for the constructing of the following theory.

Second, the legitimacy of the criminal compliance system is sufficient. While affirming the significance and importance of criminal compliance, there are also many doubts about the legitimacy of criminal compliance. "The proposition of criminal compliance constitutes a major in the foreseeable future. challenge". As a result, the legitimacy basis of the criminal compliance system has become the focus of questioning in the theoretical community. Criminal regulations originate from criminal policy, but the requirements of any criminal policy will eventually be included in the framework of modern criminal rule of law. Intervention in corporate governance with criminal law has infringed on economic freedom and departs from the last means of criminal law? In this regard, some scholars suspect the legitimacy of criminal compliance and believe that criminal compliance is difficult to include the current criminal rule of law. This book analyzes the legitimacy of criminal compliance from the theory of blame and punishment. The foundation of the company's responsibility is that the company assumes responsibility for its actions, rather than assume the responsibility for the behavior of natural persons. Through the analysis of the relationship between nature, responsibility, and corporate crimes, it is proposed that in the process of the company's own responsibility, whether there is a good internal communication system has become an important consideration. In this sense, compliance becomes a standardized expression of concepts such as "spirit", "policy", and "organizational structure", and becomes the core element of determining whether the company's crime exists; accordingly, in the company's responsibility model that regulates the way, it is The criminal compliance system of responsibility type is the deserved meaning of the company's crime theory. From the perspective of punishment, whether it is the compliance management of the previous type or the compliance management system of the post -event type, it is the plot that affects the prevention of torture, thereby guiding the criminal compliance system that is responsible to reduce the type. Through the comparison and reflection of various views, the legitimacy foundation of criminal compliance is basically responded.

The third is that the teachings of criminal compliance have their own thinking. There is no doubt that criminal compliance not only creates new areas of violations of rules, but also builds a new point of connection with the element of penalties, but also usually eliminates the effect of eliminating criminal punishment. These effects determine that criminal compliance is closely related to the entity of criminal law. If criminal compliance cannot be integrated into the doctrine of criminal law, it can only be free from the theoretical system of the criminal law and cannot become a true academic topic of criminal law. Among them, the theoretical support of unit crime is inseparable. With the deepening of corporate compliance reform, people have discovered that the theoretical world's research on corporate crimes is not in -depth, and the lack of observation of the special nature of corporate criminal liability for criminal crimes is far from forming basic theories with the nature of doctrine. In the final analysis, the foundation of the criminal responsibility of the unit's crime is who can represent the problem of the unit. Under what circumstances, can the behavior of unit members be attributed to the unit? In other words, is it based on the will and behavior of the members of the unit crime, or is it based on the will and behavior of the unit itself? In this regard, for a long time, there has been a generation responsibility, the principles of the same perspective, and the organizational responsibility. In recent years, organizational responsibility has gradually become a strong saying. This is because if the starting point is based on the crime of natural persons, the foundation of the criminal liability of the unit's crime is difficult to obtain a reasonable explanation. This book generally holds the responsibility of organizational body and believes that the responsibility of organizational body is the deserved meaning of Article 30 and 31 of my country's Criminal Law. However, traditional organizational responsibilities say that most of the decisions made by the unit representatives or members of the organization on the business activities of the unit reflect the will of the unit and should be identified as the behavior of the unit. The organizational responsibility advocated by this book emphasizes that only the leadership collective can represent the unit, or in other words, another self -self of the tissue is the leadership collective. The behavior and will of the general personnel of the unit are not decisive. General personnel of the unit are only "observed objects" or "reference materials" by the unit responsibility judgment. This claim has a certain limit on the responsibility of unit crimes. For large enterprises, it emphasizes leadership collectives to avoid personal delusional disasters to the enterprise, which fits the goal of criminal compliance and is reasonable. However, for small and medium -sized enterprises, the collective image of the leadership is blurred. How to judge is still a problem that needs further research. Fourth, the choice of criminal policy of unit crime has clear claims. The criminal policy of unit crime is one of the foundation of criminal compliance. What kind of criminal policy should be adopted for unit crimes is also an unspeakable problem. In terms of legislation, the criminal crime generally adopts strictist positions. The law network of the unit crime is more and more dense, and the criminal liability of members involved in crimes has also increased. However, in justice, the crime of unit is basically adopted by the gentle policy. The legislation and judicial disconnection of unit crimes are also an important reason for the construction of criminal compliance.

The rational criminal policy goal must not be widely widening, no principles, no concessions, or even virtual legislation on the unit crime; Chance. Finding a suitable path can not only reflect the spirit of legislation on the strict regulation of the unit's crime, but also to a certain extent to give the opportunity to survive the crime enterprise, which has become the focus of criminal policies for units in the new era. It is in this context that criminal compliance has gradually entered people's vision in recent years. The path of criminal compliance fits this policy orientation. Corporate compliance reforms are not uniform from the unity of unit crimes, and they should also implement the criminal policy of leniency and strictness. This book proposes that the truly implementation of the compliance plan is based on the policy of strict crime. The more severe the punishment, the more likely it is to promote corporate cooperation. It is considered that severe punishment is not a purpose, but to promote self -management through external pressure. Therefore, criminal compliance is not a crime of indulgence. These burning opinions are also of great significance to the implementation of the criminal compliance system.

It should be said that although criminal compliance originated from the West, the local construction of criminal compliance cannot be separated from the special nature of the criminal system of the Chinese criminal law unit and the Chinese corporate system. vitality. As a Chinese scholar, on the one hand, it is necessary to have a global perspective to pay attention to the latest practice and development of criminal compliance; on the other hand, it is necessary to find the road of criminal compliance with Chinese characteristics on the basis of summing up experience. To study the model and path of China, we need this consciousness, autonomy and confidence. The theoretical connection of this book is closely focusing on the problems of China under the global perspective, and the academic autonomy reflected in it is worthy of recognition.

(The preface of the book "Basic theory of Criminal Compliance", which is added by the editor, is slightly deleted when published.)

Source: Procuratorial Daily

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