The Role Of Compliance Program In Determination Of Unit Crime

Compliance program,in summary,is the systematic and autonomous countermeasures adopted by the enterprise itself to comply with the law.In different jurisdictions,the concept and legal effects of the compliance program can be very controversial.Since the U.S.sanctions against ZTE Corporation in 2018,the role of the compliance program in criminal justice has aroused widespread concern in Chinese criminal law academic circles.How to connect the company’s(unit)compliance program that characterizes its law-abiding attitude with the unit’s criminal prosecution,allowing units that implement effective risk management or have a good corporate culture not to constitute criminal,and allowing units that ignore laws and regulations to constitute criminal,guiding units to take autonomous actions towards company crimes,has become a key topic for advancing research on compliance program.Meanwhile,the compliance program promotes a new understanding of Chinese unit crime system.How to shape the independent will of the unit based on objective elements such as the compliance program,updating the concept of unit crime,and avoiding the problem of excessive or inadequate sanctions in the prosecution of unit crime,has become another important topic of studying the compliance program.The first chapter discusses the basic definition of the compliance program,including the motivation of promoting compliance program,and the basic concepts and legal effects of the compliance program in different jurisdictions.Then mainly presenting US federal law as a model,discussing the basic composition of the compliance program framework.With the enrichment and development of the compliance program,to a certain extent,the compliance program has been in the front area of inculpation arising from the constitutive elements of the criminal law.The second chapter firstly discusses the interpretation of Chinese unit crime regulations and summarizing the judicial application standards of unit crime.At present,the determination of unit crime is mainly based on unit will.The unit will is a combination of "for the benefit of the unit" and "decided by the decision-making mechanism or leader in charge",meanwhile considering the impact of the unit’s organizational characteristics.Under this conclusion,the compliance program mainly plays a role as limiting the range of the crime.The third chapter starts with case studies,proposing the compliance program as an important objective judgment material that can help judges measure the content of the unit’s own will,to realize the distinction between the unit’s will and the individual’s will.If the criminal behavior of the unit’s supervisor with the corresponding management authority directly violates the compliance program independently formulated and effectively implemented by the unit,the corresponding behavior should not be regarded as the unit’s behavior,which can prevent the unit from conviction.The fourth chapter also starts with case studies,then discussing the different ways of estimating unit negligence in the various organizational responsibility theories.On the one hand,it is necessary to estimate the unit’s negligence based on the unit’s own organizational characteristics,to prevent the negligent behavior of the unit supervisor with decision-making authority could be unconditionally transformed into the unit’s negligent behavior.On the other hand,it is imperative to determine whether the unit constitute negligence by the actions of the unit leader and other person who has corresponding management authority.Based on the above opinion,the compliance program can be positioned as a defense that the unit has performed its due diligence.When the unit formulates and effectively implements a compliance program against specific criminal act,it can prevent the unit from being guilty of negligence cases.