Criminal compliance of corporate corporate corporate compliance "does not stay at all times"

◎ Text "Fighter" magazine specially writes Ma Lang's lawyer team

In recent years, with the improvement and improvement of my country's criminal judicial system, the sources of criminal legal risks have become increasingly diversified, and the number and frequency of criminal criminal cases of corporate and entrepreneurs are increasing. Therefore, how to build a criminal compliance system, identify criminal legal risks, and effectively dispose of criminal risk incidents have become one of the topics of corporate managers and legal personnel.

The manual "Guidelines for Criminal Compliance Compliance" (hereinafter referred to as "Handbook"), the manual of Law and Business Union and the Marang lawyer team. It is the basic concept and working method of the Malang lawyer team to summarize its basic concepts and working methods of the criminal compliance system. The "Handbook" echo the above reality needs, from different perspectives, deepen the business operation process and different business scenarios of the enterprise, and observe and summarize the criminal risks and compliance requirements and suggestions that the enterprise may face. Among them, the differences in different types of enterprises in criminal legal risks, high incidence of crime, and posts are one of the important research contents of the Handbook.

Analysis of criminal compliance of state -owned enterprises

As an important support for state -owned enterprises as the national economy, the criminal criminal behavior of their staff, especially the executives, will not only affect the healthy development of the unit, but also cause the loss of state -owned assets.

After years of institutional guidelines and advocacy, state -owned enterprises have initially established a compliance system, but its system implementation and effects have yet to be tested. According to the author's investigation and case handling experience, the key areas of criminal compliance risks of state -owned enterprises are more concentrated, which is mainly reflected in corruption and bribery, financial taxation, investment transactions.

Relevant data statistics show that the crime of bribery and corruption is the two major crimes of crimes involved in state -owned entrepreneurs over the years, and the number of crimes in 2020 accounted for 39.06%. Therefore, state -owned enterprises still need to strengthen the supervision of corporate decision -making, improve the transparency of power operation, and prevent relevant personnel from seeking illegal interests from it.

Financial taxes are one of the areas that compliance with compliance management in the "Central Enterprise Compliance Management Guidelines (Trial)". In practice, the situation of dedicated VAT invoices is high. In 2020, the crime accounted for 10.73%of the crimes of state -owned entrepreneurs, ranking third. Therefore, state -owned enterprises need to strengthen compliance awareness and improve compliance supervision in terms of financial internal control systems, financial operations and approval processes.

In practice, when investing brings possible benefits to enterprises, it may also cause corporate assets to face the risk of being fraudulent and deceived. Relevant persons in charge of state -owned enterprises, such as negligible or pursuing the interests of the eyes, can easily make the investment behavior of enterprises blind, which eventually leads to cheating by the enterprise. Therefore, the "business partners" in the investment trading link are one of the key targets of compliance management of state -owned enterprises. The "Guidelines for Compliance Management of Central Enterprise (Trial)" even clearly requires that the enterprise "conducts a compliance investigation of important business partners, and promotes business partners' behavioral compliance by signing compliance agreements and requesting compliance commitments."

From the perspective of empirical data, the subject of the state -owned enterprise is mainly senior managers. In the case of incomplete corporate management system, senior managers can easily use the power in their hands to evade supervision, such as using power to perform crimes of money transactions, thereby constitute a crime of accepting bribery; Milk or embezzle crime. At the same time, senior managers are easy to ignore the role of compliance supervision. For example: without prudential performance, it is easy to violate negative crimes such as state -owned companies, enterprises, and public institutions. Therefore, the establishment and improving the special criminal compliance management system around the criminal legal risks and charges of senior management personnel is an effective way for state -owned enterprises to identify criminal legal risks for state -owned enterprises.

▲ The chart provides the Law and Business Union

In response to the above situation, the "Opinions on Further Promoting the Implementation of the" Three -Herit and One "decision -making system" clearly clarified the state -owned enterprise "all major decision -making, important personnel appointment and removal, major project arrangements, and large amount of funds (hereinafter referred to as the three major one, one one The big ') matters must be made by the leadership team to make a collective decision. " In addition, in order to regulate the integrity of state -owned enterprise leaders, strengthen the construction of anti -corruption and integrity of state -owned enterprises, and promote and improve compliance management, the State -owned Assets Supervision and Administration Commission of the State Council has issued the "Several Provisions of State -owned Enterprise Leaders", which requires strict state -owned enterprise leaders to strictly strictly. Implement the principles and procedures of the "three major" decision -making.

Criminal compliance analysis of private enterprises

The private economy is an important force to promote the development of my country's social productivity. Especially since the reform and opening up, it has occupied an important position in the fields of social, e -commerce, mobile payment, real estate, logistics, and media information. At the same time, private enterprises are facing greater risks, and daily business management activities may involve a wider range of risks.

In practice, there are more than 50 crimes of private entrepreneurs who have violated the frequency of higher frequency, which are more typical: illegally absorbing public deposits, crimes of dedicated VAT invoices, crimes of fraud, crimes of organizing, leading MLM activities, and illegal operation crimes , Crime of bribery and so on. Due to the immature construction of various systems, private enterprises have relatively low anti -risk capabilities. From the perspective of necessity and urgency, they should establish and improve the criminal compliance system for the industry and their own situation. Therefore, for private enterprises, external compliance incentive mechanisms are particularly important.

my country's procuratorial organs have taken the lead in undertaking the heavy responsibility of the exploration of the compliance incentive mechanism, introduced corporate compliance incentives into a public prosecution system, and launched the exploration and practice of the corporate compliance system involved in the case. Although the compliance incentive mechanism has not been established in my country's criminal law and criminal procedure law, the "Supreme People's Procuratorate's Work Report" has clearly stated that "the person in charge of private enterprises involved in operating crimes, it can not be arrested in accordance with the law, can not be arrested, can not complain, can not complain In the case of non -complaints and not being able to judge the application of probation, at the same time, it is explored to urge the compliance management of enterprises involved in the case, promote the institutionalization of 'strict management', so as not to allow 'love' to be abused. " It is worth noting that the above report is the first time that the national work report has mentioned the criminal compliance of private enterprises. The industries and fields engaged in private enterprises are very extensive, and there are constantly emerging business models. Compliance needs to focus on business models, financing and borrowing, and business public relations. Among them, private enterprises engaged in Internet finance, big data credit reporting, commercial direct sales, commercial financing and other businesses have lacked the ability to evaluate and monitor the criminal compliance of the business model, or often only conduct transaction documents involved in the business model The fairness and feasibility analysis of civil laws generally have the risk of violating criminal law.

Compared with state -owned enterprises, financing links are one of the high incidence of criminal legal risks of private enterprises. Although the state has taken various means to solve the problem of private enterprises' capital chain, it is undeniable that the problem of "difficult financing" and "expensive financing" of private enterprises still cannot be ignored. In this case, in order to solve the difficulties of capital shortage and fund chain, some companies have to choose various financing methods to rescue themselves. Some companies obtain financing through "expanding financing objects and channels". If financing is made through the public, this behavior may constitute the crime of illegally absorbing public deposits and even raising funds.

In addition, some companies reduce financing difficulties through "packaging itself", such as using false materials during financing from banks or other financial institutions. In practice, the use of "deception methods" for non -fraud funds may constitute fraud loans, bill acceptance, financial ticket certificates, and even crimes of loan fraud, bill fraud, credit card fraud, and financial voucher fraud. In judicial practice, the crime of deceiving loans, bill acceptance, and financial tickets is also a crime of high incidence of private entrepreneurs.

In addition, when private enterprises carry out commercial activities with other entities, especially state organs, state -owned enterprises or public institutions, in order to obtain trading opportunities or sell their products and services, they may give back and deductive and handling fees for property or various names, so as to thus, so as to thus, so as Suspected criminal risks related to commercial bribery. The empirical data controlled by the author of the "Handbook" shows that this problem is particularly prominent in the construction and real estate industry and the pharmaceutical industry. Therefore, the crime of bribery and unit bribery of private enterprises is also a crime of high incidence. The key compliance objects of private enterprises include shareholders, purchasing staff, and financial personnel.

Analysis of criminal compliance of listed companies

In recent years, the illegal behavior of the securities market and its negative social impact have attracted much attention from all walks of life. The New Securities Law and the "Criminal Law Amendment of the People's Republic of China (11)" have been introduced one after another. While clarifying the securities issuance registration system and improving the securities civil compensation system, the illegal cost of securities violations, information disclosure illegal, insider trading, etc. Criminal penalties for illegal acts, and the rules and systems supported by it (such as the delisting and information disclosure of listed companies, information disclosure, etc.) have also been introduced one after another. Many strong regulatory policies and special supervision activities show that "strong supervision, heavy punishment" has become the "new situation" that the securities industry needs to pay full attention to. This has a significant impact on the criminal compliance strategy and implementation path of securities business, which needs to attract full attention.

At present, the main characteristics of securities crimes are: First, there is potential for securities violations. The number of administrative law enforcement cases of the Securities and Futures Commission, the criminal risk incident announced by listed companies, and the number of criminal judgments in the same period were huge. Second, the trend of "criminal joint" cracking down on securities violations is obvious. In the past two years, the relevant statement of "the subject involved has been made by the Securities Regulatory Commission's administrative punishment" has appeared in the criminal judgment in the past two years. The trend of joint crackdown on law enforcement agencies and judicial organs is increasingly obvious.

The punishment of the CSRC's violations and the announcement of the listed company's torture is an important reference for listed companies to clarify the source of risks and key compliance links. Among them, the administrative law enforcement of the Securities Regulatory Commission on the case of securities violations shows that insider trading and information disclosure violations are the main forms of securities business violations. Therefore, the review and processing of securities business information has become an important part of compliance risk identification and prevention and control of listed companies. In 2019 and 2020, 65 criminal -related announcements released by listed companies show that 60 subjects (including companies, natural people) are suspected of criminal criminals related to business violations, commercial bribery, and internal fraud in the daily operation of listed companies.

It is important to pay special attention to the amendments to the Criminal Law (11). The crimes of fraud issuance of stocks and bonds, illegal disclosure, non -disclosure of important information, and the crime of manipulating securities and futures markets have been revised, and the punishment is unprecedentedly strengthened. Therefore, some of the crimes of "unpopular" in the securities field are likely to be "activated" again. The most typical is "illegal disclosure, not disclosing important information." Information disclosure of illegal acts has always been the key target of the CSRC's administrative law enforcement audit activities. In 2019 and 2020, cases accounted for more than 25%. After the amendment of the Criminal Law (11), the maximum sentence was increased to 10 years. Due to the suspected crime of "financial fraud" in violation of regulations, it is likely to be the key target of criminal investigation in the next stage. In terms of high -income risk positions, the post conditions involved in criminal judgment documents related to listed companies in 2019 and 2020 show that the high incidence of securities crimes in the management and operation of listed companies. Among them, chairman and manager positions are high -risk positions involved in the case in securities crimes, with a total of 34 cases, accounting for 61.82%. In addition, the criminal risk index of financial positions is also very prominent.

(Author Ma Lang Dacheng (Shanghai) Law Firm partner)

Editing ｜ Cui Xiaolin

Edit ｜ Wang Qian

School pair ｜ Zhang Bo Zhang Xuehui

This article is published in the "Legal person" magazine in August 2022 Total 222 Lan Lan column

- END -