Research On The Conditional Non-prosecution System Of Enterprise Compliance

The criminalization of corporate compliance has made it increasingly regarded by judicial organs and enterprises as an effective means to govern and prevent corporate crimes.Compared with the United States,Britain and France,the biggest obstacle to the implementation of corporate compliance in China is the lack of effective criminal litigation incentives.In the pilot work of enterprise compliance reform,the Supreme People’s Procuratorate tried to use the conditional non-prosecution system of enterprise compliance as an incentive measure for criminal proceedings,so as to encourage and urge enterprises to carry out compliance rectification,and to build and implement effective compliance management systems and systems to realize the identification,prevention and suppression of enterprise compliance risks.By examining the typical cases of the pilot announced by the Supreme People’s Procuratorate,it can be found that on the one hand,not only the current pilot implementation of the enterprise compliance conditional non-prosecution system still has a lack of norms,resulting in the difficulty of starting the procedure.The unclear definition of the scope of application has been questioned by the academic community;the limited investigation period makes the development of compliance investigation work bound and restricts the investigation effect.It is urgent to make further systematic analysis and legislation to respond to the practical problems such as the anomie of the third-party supervisor mechanism and the effect of compliance supervision.On the other hand,the academic research on the basic theory of the conditional non-prosecution system for corporate compliance also has a tendency to generalize,resulting in a lack of systematicness and unity,and there are many theoretical disputes to be further explained.Therefore,this paper intends to carry out specific research and discussion according to the systematic and holistic research approach,combining comparative research method and case analysis method.First of all,the comparative research method is used to look at the outside world,examine and compare the practical patterns of the corresponding systems of the pre-compliance countries such as the United States,the United Kingdom and France,and refine,reflect and learn from the lessons and useful experiences of these pre-compliance countries.Secondly,taking the practice of the conditional non-prosecution system of enterprise compliance in the four batches of 20 typical cases published by the Supreme People’s Procuratorate as the basic model of the research in the field of procedure start-up mode,applicable case scope and object scope,compliance inspection period,third-party supervisor selection accountability mechanism,cost sharing method and so on,and taking the referee data related to unit crime on the referee document network as the empirical research material,this paper analyzes and considers these problems and their causes one by one.Finally,combined with the reality of China’s legal system,the macro-demonstration is carried out from the institutional arrangement of the standardization,institutionalization and procedural operation of China ’s enterprise compliance conditional non-prosecution system and the scheme design of future entry into the law.From the aspects of the selection of the legislative model and the discretionary model of the procuratorial organs,the improvement of the third-party supervisor selection accountability mechanism and the cost-sharing mechanism,the definition of the scope and conditions of application,and the design of the specific program architecture related to it,this paper demonstrates and explains the specific blueprint scheme of the conditional non-prosecution system for enterprise compliance in China,and provides theoretical and practical evidence for the construction and improvement of the conditional non-prosecution system for enterprise compliance in China,with a view to the effective governance of enterprise crime in China and the development of compliance in China.Contribute to the research wisdom of certain academic value and the design blueprint of the conditional non-prosecution system for enterprise compliance.In addition to the introduction and conclusion,this paper is mainly composed of four parts,the key part is the third part and the fourth part.The first part is the necessity and possibility of constructing and perfecting the conditional non-prosecution system of enterprise compliance.This part mainly starts from the theoretical basis and institutional basis of the construction of the conditional non-prosecution system of enterprise compliance,and expounds and discusses the necessity and possibility of the construction and improvement of the conditional prosecution system of enterprise compliance in China,so as to lay a theoretical foundation for the follow-up study of the article at the macro level.The second part is the extraterritorial investigation of the practice of enterprise compliance conditional non-prosecution system.This part is mainly a comparative mirror,using comparative research method,comparative study and China’s judicial system is very different,belong to the Anglo-American law system and the pretrial transfer agreement system of the United States and the suspension of prosecution agreement system of the United Kingdom,and similar to China’s judicial system,belong to the continental law system and the same suspension of prosecution agreement system of France,the three typical ’ first compliance ’ national enterprise compliance with the conditions of non-prosecution system practice.After a comparative study of the three aspects of their respective procedures,the scope of application,and the specific content of the agreement,it is found that although the three have insufficient or excessive regulation of procuratorial power to varying degrees,and the release of enterprises with compliance may violate the principle of legality,damage the legitimate litigation rights of the enterprises involved,and violate fairness and justice.However,its more standardized procedure initiation method,clear scope of application,and relatively specific agreement content and other systems and program design still have important reference significance for China.It can provide a reference for the construction and improvement of China’s enterprise compliance conditional non-prosecution system.The third part is the internal review of the practice of the conditional non-prosecution system for corporate compliance.On the one hand,this part takes the case as an example,on the basis of the comparative study of the second part,using the case analysis method,from the perspective of the practical exploration of the pilot reform of China’s enterprise compliance reform under the perspective of procuratorial leadership,examines and reflects on the typical cases announced by the Supreme People’s Procuratorate and the judicial practice of the local procuratorial organs on the conditional non-prosecution system of enterprise compliance.It is found that the lack of norms of the conditional non-prosecution system of enterprise compliance causes the procedure to be’ difficult to start’.Among them,the lack of internal drive of the procuratorial organs leads to their lack of initiative to start;insufficient protection of legitimate rights leads to infringement of the autonomy of the involved enterprises;the unclear definition of the scope of application has been questioned,especially its focus on small,medium and micro enterprises.The practice of focusing on small,medium and micro enterprises is considered to be too wide,which makes the necessity and possibility of application questionable;both enterprises and entrepreneurs are considered to be covered too widely,which makes the application of legitimacy and legitimacy insufficient.At the same time,the limitation of the inspection period makes the compliance inspection bound,which restricts the inspection effect and is difficult to meet the needs of the compliance inspection;the rigid setting of the inspection period cannot guarantee the effectiveness of compliance rectification.In addition,the anomie of the operation of the third-party supervision mechanism undermines the effectiveness of compliance supervision,especially the rigid selection and accountability mechanism of the third-party supervisors,which affects the objective neutrality of the third-party supervisors in performing their duties;the unreasonable supervision cost sharing mechanism is not conducive to the enthusiasm of third-party supervisors to perform their duties.And so on,leading to the lack of standardization and proceduralization of the operation of the enterprise compliance conditional non-prosecution system.On the other hand,on the basis of combing the research results of the authoritative literature in the existing academic circles,this part also conducts in-depth research and practice,excavates and analyzes the above problems and their root causes one by one,so as to construct the conditional non-prosecution system of enterprise compliance in China in advance.’ Pulse consultation ’ provides directional guidance for the demonstration research on the improvement path of the conditional non-prosecution system of enterprise compliance in the follow-up article.The fourth part is the perfect path of China ’s enterprise compliance conditional non-prosecution system.This part is mainly based on the research conclusions of the above three parts of the comprehensive article,reflecting and refining the lessons and experiences inside and outside the domain,starting from the selection of the legislation and non-prosecution discretion model of the corporate compliance conditional non-prosecution system,the definition of the scope and conditions,the improvement of the selection and accountability mechanism of the third-party supervisors,and the design of the specific program architecture.This paper puts forward the preliminary idea of this paper for the specific improvement path of China’s corporate compliance conditional non-prosecution system,’ suit the remedy to the case’,and provides a framework proposal with certain academic value and practical significance for promoting its early entry into the law.