Study On The Applicable Of Non-Prosecution In Enterprise Compliance

Globalization,risk society and information network are three social changes which have great influence on the transformation of criminal law pattern in the 21 st century.Among them,risk society is characterized by ubiquitous potential risks,which are especially evident in complex crimes such as organized crime and economic crime.In the context of risk society,the risk of enterprise crime tends to focus on the crime of violating the market management order,which is often caused by enterprises seeking survival space in the unfavorable business environment.From this point of view,a sound business environment is crucial to social and economic development.Since the18 th CPC National Congress,the CPC Central Committee has attached great importance to the development of enterprises,putting forward important conclusions such as "the rule of law is the best business environment" and "bringing the optimization of the business environment into the track of rule of law".Based on the above-mentioned spirit and requirements,the Supreme People’s Procuratorate has actively explored the establishment of a system of non-prosecution in compliance with corporate laws,in an attempt to minimize the effect of social shock caused by corporate crimes.Of course,the emergence and development of non-prosecution of enterprise compliance cannot be without the reform of criminal procedure mode from confrontation mode to consultation mode,the transformation of criminal procedure concept from retributive justice concept to restorative justice concept,and the transformation of post-regulation to pre-prevention.Before non-prosecution,leniency system of guilty plea reflects and promotes the change of the above idea to a certain extent,and provides growth environment for non-prosecution in compliance.From the perspective of utilitarianism,non-prosecution of enterprise compliance is a treatment method with the strongest incentive degree among lenient punishment of compliance under criminal compliance,and it is the name of a kind of law-abiding consciousness that Chinese enterprises must establish when participating in international trade.However,the application of enterprise compliance non-prosecution has been under suspicion.Skeptics believe that,in the context of enterprises suspected of crimes,the formulation of enterprise compliance plan is only to meet the decorative provisions of the requirements for compliance use.Enterprise compliance without prosecution not only cannot achieve its substantive purpose,but also has the risk of being abused as a crime tool.In addition,such a consultative governance model is not only detrimental to creating a healthy and fair business environment,but also creates room for power rent-seeking.In the context of risk society,non-prosecution in compliance also has risk attributes.On the basis of clarifying the legitimacy of enterprise compliance non-prosecution,the focus of this paper is to explore how to avoid the abuse of compliance non-prosecution while exerting the value function of enterprise compliance non-prosecution.The point of view of this paper is that non-prosecution of corporate compliance is helpful to prevent corporate crimes and to build a healthy and harmonious business environment,but it should not be overestimated and is not a means to eliminate corporate crimes.In the face of doubts,this paper tries to jump out of the detailed study of compliance non-prosecution,aiming at returning to the compliance non-prosecution itself,first responding to the doubts faced by enterprises through theoretical jurisprudential analysis,and then clarifying the future development track through specific risk avoidance measures.On the whole,the non-prosecution of enterprise compliance has the legitimacy,but at the same time,it also faces many risks such as instrumentalization and formalization.It is precisely in the interweaving of affirmation and doubt that it is necessary to study the risk of enterprise compliance non-prosecution,which is the compliance leniency treatment with the highest incentive degree and the greatest abuse risk.On this basis,it is of great significance to explore the legal basis of enterprise compliance non-prosecution and the risk avoidance measures.