From "corporate autonomy" to "national, enterprises and the governance"

◎ Cui Xia, a special writing of the "Fa" magazine

▲ CFP

The competition of modern enterprises is not only the competition of commercial strengths such as products, services, and technology, but also a competition for the comprehensive ability of risk prevention and control. From a national perspective, corporate criminal compliance is a means to effectively prevent criminal criminal crimes. The compliance plan can not only effectively prevent corporate crimes beforehand, but also the basis for corporate criminal defense after criminal criminal crime, reducing criminal liability, and obtaining the basis of lenient punishment.

Units under corporate autonomy crimes

In the context of the increasing crimes of unit crimes and increasing number year by year, some scholars believe that the behavior of the unit's as if the unit's will seeks the benefits of the unit, but its root cause is that the company does not have the habit of developing the law. The specific manifestation is the incomplete internal control mechanism, the lack of supervision mechanisms, and the situation of corporate instructions and illegal violations.

Due to the natural profitability of the enterprise, when most enterprises formulate the development goals, they only look at efficiency and profit, and they are "naked" to maximize interests: they attach importance to production and operation management, lack of considerations of corporate compliance, and there is no legal law. There is no legal law. Risk prevention and control, especially the protection of criminal risk prevention and control.

Under the context of the deepening of globalization of the world economy, the increasingly complicated corporate structure of the legal person's organization, the diversification of the company's business content, and the cross -border regional area of ​​the business activity area, it is difficult for corporate crimes to be discovered. Facing common issues.

A large number of cases in judicial practice show that once the enterprise is investigated for criminal responsibility, the reputation is seriously affected, which will affect business development. As a result, the company's bankruptcy, workers are unemployed, taxation is reduced, which will eventually cause huge public interests. It will also increase.

Criminal compliance under corporate autonomy

How to let illegal enterprises be punished for crime, but also allows enterprises to not have serious social consequences after being punished. The ideal expectation is that enterprises can consciously abide by the law.

By constructing a compliance system, preventing units in advance, and promoting enterprise optimization management have formed consensus. The United States is the earliest country in the world to establish a compliance system: the procuratorate regards the compliance plan as a basis for whether to prosecute, formulate two special systems: non -prosecution agreement and suspended prosecution agreement. After the enterprise was involved in the case, the Procuratorate reached an agreement with it to require the enterprise to pay a certain amount of fines within the time limit and establish an effective compliance plan. If the enterprise has paid a fine within the time limit and passed the compliance evaluation and inspection, the prosecutor could not file a lawsuit or suspend the public prosecution to stimulate the initiative of the enterprise to prevent crimes.

For local companies that go abroad, they not only need to abide by their national laws, but also have the regulations of the national laws where they go out. Establishing a comprehensive compliance system has become an inevitable choice for Chinese companies to develop overseas.

According to my country's current criminal law, a dual penalty system is implemented, that is, a penalty of the unit is punished and the person directly responsible is sentenced to punishment. In judicial practice, the criminal punishment of the enterprise is eventually implemented in fines. However, criminal penalties are reflected in the low penalty of the unit, and sometimes it is not as strong as administrative penalties, which objectively leads to the low cost of corporate crimes. Individual enterprises have even transferred possible fines as part of the operating cost, and the last brain is passed on to consumers. Compared with the huge income obtained, the cost of ultra -low criminal violations is not worth mentioning. This method of punishment is not only difficult to force enterprises to abide by the law through the way of postponing, but it will mislead the enterprise.

The cost of criminal compliance of enterprises has also objectively reduced the willingness of enterprises to actively criminal compliance. First of all, establishing a dedicated compliance team requires the participation of professionals, and the company's operating costs will increase. As far as most small and medium -sized enterprises are concerned, controlling costs and survival are the company's first priority. Secondly, corporate criminal compliance requires coordination and cooperation between various tasks, which may involve corporate business secrets being known by more people and how to deal with criminal acts. The improvement and optimization of governance structures, enterprises need to weigh the advantages and disadvantages, and to invest a lot of time.

Criminal compliance does not prosecute the pilot reform pilot

In recent years, the procuratorial organs have vigorously promoted the reform of the enterprise involved in the case in recent years, and provided the "judicial rehabilitation" opportunity for "sick enterprises". Since March 2020, the Supreme People's Procuratorate has deployed the pilot work of corporate compliance reform in the 6 grass -roots procuratorates. The main reform content is how to remedy the company after criminal cases. Since March 2021, on the basis of fully summing up the first batch of pilot experience, the second phase of pilot work has been carried out in 10 provinces including Beijing, Shanghai, and Jiangsu. The pilot and procuratorial organs have made a non -approved arrest, non -prosecution decision in accordance with the law, or put forward the proposal of light quantitative sentences according to the law of confession and punishment in accordance with the law. Compliance commitments and actively rectify implementation, and promote corporate joint rules and regulations. In order to cooperate with the case of corporate compliance cases, the Supreme People's Procuratorate issued the "Guiding Opinions on Establishing an Enterprise Compliance Third -Party Supervision and Evaluation Mechanism" (trial) on June 3, 2021, which clearly stipulates that "the People's Procuratorate is dealing with corporate crime cases Among them, compliance materials such as third -party organization compliance investigation, corporate compliance plan involved in the case, and regular written reports should be made as decisions such as approved arrests or not arrested, prosecuted or not prosecuted, and whether to change compulsory measures. Or an important reference for procuratorial suggestions and procuratorial opinions. "The governance of the country and enterprises under the criminal compliance

The value of non -prosecution of corporate criminal compliance is reflected in, from passive law -abiding to active compliance, the state has from difficulty in supervision to strong supervision, from supervision to recognition, forming a benign interaction of the country and enterprise "win -win".

From the perspective of the enterprise level, companies can better know where they are suspected of crime, and the direction of compliance is clear, targeted and effective. In addition, enterprises have unparalleled various advantageous conditions in the prevention of crimes, especially large enterprises, with strong financial resources, professional and sufficient manpower, internal timely information, and various technical resources. The compliance does not prosecute, and the suspension of prosecution adopts the inverted method of proof liability. This is similar to the proof responsibility for unknown sources of property in duty crimes. The enterprise provides relevant evidence to confirm that it has established an effective compliance system and in practice in practice. Obtaining the execution, or actively carried out targeted compliance after the case, can rule out the possibility of "inaction" crime of "inaction", thereby stimulating the willingness and motivation of the enterprise to prevent itself.

Enterprises to build and implement effective compliance plans can timely improve the risk identification mechanism of corporate crimes, optimize internal compliance operations, and improve external cooperation compliance, which will help enterprises to eliminate relevant criminal liability risks in a timely manner, form a strong legal compliance operation The corporate culture allows criminal compliance to grow into an enterprise's gene, coexist with enterprises, establish a good image and reputation for the long -term development of enterprises, enhance the core competitiveness of the enterprise, create more business opportunities for enterprises, and finally realize the commercial closed loop.

From the perspective of national level, corporate criminal compliance does not prosecute and suspend prosecution is an important manifestation of the modernization of the national governance system and governance capabilities. It can achieve the unity of criminal judicial legal effects and social effects, and ultimately achieve judicial non -criminalization. As far as the unit crime is concerned, the debate of excessive crimes has never stopped, and the social effect of prosecution is not ideal. Compliance of corporate compliance means reducing criminal liability and accelerating the process of non -criminalization can effectively avoid excessive crime of unit crime, and avoid many side effects caused by the guilt model.

Under the governance of the state and enterprises, the major innovation of the criminal compliance system lies in the degree of efforts of whether the company's operations and its compliance are compliant and their compliance. Incentive mechanisms such as reducing punishment and effective compliance and non -prosecution, the effectiveness of the self -prevention of the enterprise is directly related to the company's own destiny, so that the enterprise will face the choice of "either compliance or severe damage or death", which significantly increases the illegal cost of corporate illegal costs. At the same time, let the enterprises enjoy the benefits brought by the compliance. Compared with the current postponement of postponement of postponement, the establishment of a compliance system does not give the enterprise self -correction, and the establishment of a compliance system can help achieve the country's effective supervision of enterprises, reduce supervision costs, judicial costs, improve corporate governance, create a good business environment, form formed The new type of governance pattern prevented by the "State -Enterprise" cooperation.

Enterprise criminal compliance weight is executed

In the process of criminal justice, whether it is prevention or relief in advance, the final result is either non -prosecution or punishment from lightly. This is a process from guilty to sinful treatment, and it is also a de facto innocent treatment. It also needs to be further combined with Chinese national conditions for localization and development.

The vitality of the system lies in implementation. The company shall effectively fulfill the compliance commitment. In particular, the company's senior management must take the lead in compliance to lead the compliance of the company's operation, and ultimately make compliance a gene of the enterprise.

The modernization of the national governance system and governance capabilities means that the state cannot only use severe afterwards as a means of criminal supervision. Through the incentive system of criminal compliance, the enterprise actively builds a compliance plan, becomes state punishment into corporate prevention, and becomes after -the -way punishment into pre -compliance and relief in the event. The atmosphere reflects the country's institutional care, ensures steadily in Chinese enterprises, and foreign enterprises come in with confidence.

(The author is a professor at the Party School of the Provincial Party School of the Sichuan Provincial Party Committee of the Communist Party of China)

Editing ｜ Cui Xiaolin

Edit ｜ Huiningning

School Delivery ｜ Zhang Bo Zhang Xuehui This article was published in the "Legal person" magazine in July 2022 Total 221 Phase 221

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