Study On The Compliance Non-prosecution System For Private Enterprises

To improve the legal environment for private enterprises,in the " Less Arrest,More Careful Prosecution and Detention" policy background,based on the work objectives of combination of strict and caring for private enterprises,and on the establishment of lenient system of confession and punishment in the law,the procuratorial organization began to promote compliance non-prosecution system reform exploration for enterprise.Private enterprises to build compliance non-prosecution system has its theoretical basis,including the theory of substitution of penal function from the perspective of substantive criminal law theory,as the existing punishment mechanism has structural deficiencies and compliance non-prosecution system can have alternative to the structure;On the other hand,from the perspective of criminal procedural law,the internal logic of the establishment of enterprise compliance non-prosecution system discussed by the doctrine of prosecuting discretion,and the justification of discretion was proved from three aspects,the public authorities,enterprises involved in crime and the public.From the internal perspective,the compliance system can reduce criminal risks on private enterprises fundamentally,but private enterprises lack the internal motivation to build a compliance system,which constitutes the internal necessity;From the external perspective,there are four values of the non-prosecution system: to promote the equal protection of private enterprises,make up for the lack of administrative supervision,adapt to the trend of economic and compliance globalization,and produce better social effectiveness.From the perspective of the pilot reform practice,through the analysis of the "The first batch of pilot units" and "Typical cases",the compliance and non-prosecution reform model can be typified as "compliance + non-prosecution" and "non-prosecution+ procuratorial suggestion + compliance",namely,the prosecutorial advice model and conditional non-prosecution model,the scope of the pilot crime is relatively narrow,the circumstances of the pilot crime is not confined to minor crimes,the scope of the applicable subject is not confined to the enterprises,and the practice of these aspects is the most controversial problems of the system construction.Combined with domestic and foreign theoretical and research on practice,uphold the concept of protection of private enterprises,and finally established a "decentralized"legislative model of corporate compliance non-prosecution system into the conditional non-prosecution system,to delineate the scope of application of the system: first,insist on the premise of the application of the system of plea for leniency;second,insist on the“double non-prosecution of compliance" model;third,insist on the strict prohibition of non-unit crime;forth,to expand the scope of applicable crimes appropriately;fifth,clear felonies are not absolutely prohibited but should be prudently applied.At the same time,In the start-up phase set the positive and negative conditions,in the review procedure adhere to the discretionary mode,in the regulatory inspection procedure to establish different compliance standards,to set up simple and complex inspection procedures,to explore a variety of compliance cost burden model to complete the construction of the compliance non-prosecution system.