A Study Of China’s Corporate Criminal Liability Theory In The Perspective Of Compliance Program

Along with China’s compliance reform,corporations are continuously urged to establish effective compliance programs.From the perspective of China’s corporate criminal theory and judicial practice,however,it is difficult for corporations to get criminal incentives for their effective compliance programs.Thus,to seek theoretical basis in criminal law for China’s compliance reform,and to solve the problems in our country’s corporate criminal liability theory,this paper aims to reflect and perfect our country’s corporate criminal liability theory based on domestic and foreign relevant theory in the perspective of compliance program.In addition to the introduction and conclusion,this paper is divided into three parts.The first part analyzes the criminal significance and enlightenment of compliance program.Compliance programs can promote corporation’s self-regulation and cover the weakness of state’s regulation on corporate offences.However,the legislation and practice in corporate crime in our country are not sufficient to motivate corporations to establish effective compliance programs.In foreign countries,according to the doctrine of respondent superior and the doctrine of identity,a compliance program can be a cause of non-prosecution,a cause of penalty remission,and a mandatory obligation.According to the organizational responsibility theory,a compliance program can be a cause of crime deterrent.The doctrine of respondent superior and the doctrine of identity do not match with the compliance program due to their own defects.In comparison,the organizational responsibility theory,which conforms to the principle of personal responsibility,is more suitable as the theoretical basis of compliance program.Therefore,the theory of organizational responsibility should be introduced into China’s corporate criminal liability theory.The second part introduced the theory of organizational responsibility,and this paper’s opinion on corporate criminal liability is stated.By analyzing foreign theories,it can be concluded that a legal person has its own behavior,which comes from its employee’s behaviors that meet certain conditions;the fault of a legal person can be presumed from its inherent elements like the management system and organizational structure.The domestic views on the theory of organizational responsibility can be divided into two models: the behavioral responsibility model and the organizational responsibility model.The organizational responsibility model is not supported by the law,ignores the role of employees in the corporation,and is not the only option to deal with the problems existing in China’s corporate crime.This paper supports the behavior responsibility model,holding that corporation has independent behavior,will and fault,can independently bear criminal responsibility.The criminal responsibility of employees is pure natural person’s responsibility.The third part explores how to reshape the elements of corporate crimes in China based on the theory of organizational responsibility.In judicial practice,it is not reasonable to identify corporate crimes through the element "for corporate interests" or "the illegal gains belong to the corporation",and the practice should be abandoned.It is feasible to reshape the elements of corporate crimes in China based on the theory of organizational responsibility.The elements of corporate crimes involve corporate criminal behavior and corporate fault.The behavior of the employees within their duties and in accordance with the corporation’s will can be overally and normaltively evaluated as the corporation’s criminal behavior.The corporation’s fault can be presumed from its management regulations,organizational system,operating habits,supervision mechanism and other elements;An effective compliance program can be an important material in identifying corporation’s will,can prevent the employees’ behaviors from being attributed to the corporation,and can play an vital role in identifying corporation’s fault.