Research On The Discretion Of Procuratorate In Compliance And Non-prosecution In China

As a new social governance system to deal with unit crimes,the corporate compliance system has a unique function of legal benefit restoration,crime prevention,and social governance.The system is a further exploration of China’s consultative justice system by the procuratorate,following the criminal reconciliation system and the plea and punishment system.From the perspective of society as a whole,the nonprosecution treatment by the procuratorate after the compliance and rectification of the enterprises involved in the case allows the enterprises involved in the case to be exonerated.This can effectively prevent the negative economic impact of a conviction,such as the loss of a large number of employees and the inability of the enterprise to continue production and income generation,i.e.,avoiding the "water ripple effect" of prosecuting the enterprise and spilling over to the innocent.In the case of procuratorate,the non-compliance of enterprises involved in the case is a good reflection of its active participation in social governance.By using prosecutorial discretion,the procuratorate can avoid complicated criminal procedures,reduce the backlog of cases,save judicial resources,and improve judicial efficiency by not prosecuting companies after it has met the requirements of the compliance program and completed assessments and inspections.In the case of the enterprises involved,they can change their past illegal and unlawful business practices through effective compliance and rectification,so that they can continue their own lives and ensure legal and compliant operation in the future.And it can avoid negative effects such as guilty evaluation due to non-prosecution.While the corporate compliance system has many of these advantages,it is worth pointing out that the system poses considerable challenges to the exercise of prosecutorial discretion by the procuratorate.China’s Criminal Procedure Law limits the discretion of the procuratorate to relative non-prosecution in the matter of nonprosecution.However,relative non-prosecution imposes strict limitations on the circumstances of the crime and the application of criminal law,creating considerable challenges for our procuratorate in applying corporate compliance.In the pilot,in order to ensure the effect of corporate compliance,the procuratorate mostly adopts the compliance inspection model,which makes compliance non-prosecution in the name of relative non-prosecution,the essence of conditional non-prosecution.In addition,as the pilot for misdemeanor cases of less than three years of imprisonment and felony cases of more than three years to less than ten years of imprisonment are able to apply compliance non-prosecution,there is a need to apply compliance to misdemeanor cases,and the application of non-prosecution to felony cases infringes on the court’s right to trial reservation.These reflect the problem of improper expansion of prosecutorial discretion by the prosecution.It is necessary to regulate the discretionary power of the procuratorate.China’s Constitution stipulates that the procuratorate is the organ of legal supervision,so it should exercise their powers in accordance with the law and meet the requirements of balancing litigation efficiency and litigation justice.In addition,the court should conduct the necessary review of the procuratorate’s compliance discretion to ensure that the rights and interests of individual citizens are protected in the face of the vast judicial power of the state,as well as for the protection of the rights of the enterprises involved in the case.As the origin of the corporate compliance system,the widely applied model of limiting the discretionary power of the procuratorate in foreign countries is mainly manifested in the court’s judicial review intervention model.The court,as the judicial review body in compliance,plays a role in reviewing and approving the corporate compliance deferral agreement and the decision of the procuratorate to terminate the proceedings after inspection.This has an effective function of regulating and restricting the exercise of the procuratorate,and has good significance for China’s corporate compliance system.Based on all above,in the path of regulating the construction of the procuratorate’s corporate compliance discretion,on the one hand,China’s corporate compliance nonprosecution system should learn from the experience of overseas corporate compliance systems,clarify the applicable test of the procuratorate’s discretionary power not to prosecute,expand the scope of application of conditional non-prosecution,and legitimize its power.At the same time,it should build a judicial review path for the court to intervene in corporate compliance and improve the supervision and control mechanism at all stages of non-prosecution.On the other hand,it should be based on the actual needs of China,improve the relief mechanism for corporate compliance nonprosecution,and refine the existing requirements for compliance non-prosecution hearing procedures to ensure that the procuratorate exercises its authority in accordance with the law,and that the interests of the enterprises involved,as well as those related to the case and the public are protected.