Research On The Discretionary Power Of Procuratorial Authorities Not To Prosecute In Corporate Compliance

The expansion of public power inevitably raises public questions about the legitimacy of this expansion and the related constraints and supervision mechanisms.Therefore,this paper will focus on how to improve the standardized operation of prosecutorial discretion in corporate compliance,with the following four parts of the study.The first part is a review of the historical,theoretical,and policy basis of prosecutorial discretion not to prosecute.China has developed five types of nonprosecution,and is currently exploring corporate compliance non-prosecution.The existence of prosecutorial discretion not to prosecute has a legitimate jurisprudential and policy basis,which is not only the inevitable requirement of prosecutorial cheapness,but also a prerequisite for achieving individualized justice,while also taking into account the economic principle of maximizing the benefits of litigation;in the context of the criminal justice policy of “fewer arrests and cautious prosecutions and cautious detentions”,it is also a basic requirement for achieving “cautious prosecution”.As a new type of nonprosecution,the introduction of corporate compliance non-prosecution has its real needs,but it is still a new power created by the procuratorial authorities themselves,and ultimately face many obstacles.The second part is the existing problem of prosecutorial discretion in corporate compliance.First,the legitimacy of compliance out of crime is questioned,its application not only faces theoretical obstacles in criminal law doctrine,but also violates the basic principle of equal application of the law,so that entrepreneurs get preferential treatment over ordinary natural persons committing crimes.Second,the power is not enough rigidity of the constraints of supervision,the current lack of internal administrative supervision of neutrality,external third-party agencies and prosecutorial hearings to monitor the status of inequality and imperfect system.Third,the pilot in compliance with the applicable object of enterprise size,crime,applicable sentence and other aspects of the standard varies widely.Fourth,the third-party supervisory and management agencies also face problems such as operational effects in a formal manner,the main body of funding payments is unknown,and professionalism is questioned.Fifth,the prosecution public mechanism is not perfect,the enterprise compliance of local planning documents,the application of enterprise compliance of the case information are not available;prosecution public hearings also have insufficient coverage and limited number of constituents,the participation of participants in the case is not high,the hearing process is a formality.The third part discusses whether trial power should be introduced to restrain prosecutorial discretion.From an extraterritorial perspective,corporate compliance is divided into two models,one is the prosecutor discretionary model,represented by the United States,where judges only conduct formal review of compliance agreements,which in practice has excessive prosecutorial discretion and significant abuse of power,but helps the widespread implementation of the compliance system.The second is the judicial review model,represented by the United Kingdom,in which judges review the substance of compliance agreements,and compliance agreements can only become effective and enforceable with the approval and consent of judges,which can effectively restrain the abuse of prosecutorial discretion,but will inhibit the promotion of the compliance system.At present,China does not have the prerequisites for large-scale application of corporate compliance,and it is appropriate to adopt the court filing review model for compliance agreements,i.e.,all compliance agreements should be submitted to the court for filing,and the court will review some of the agreements from time to time.The fourth part is a proposal to improve the operation of prosecutorial discretion not to prosecute in China’s corporate compliance.The first is to set a binary path of recourse for unit crimes to address the criminal law doctrinal obstacles facing corporate compliance.The second is to limit the application of compliance non-prosecution for large and medium-sized enterprises,the applicable crime for specific economic and job-related unit crimes,and the applicable sentence for cases in which the person directly in charge may be sentenced to more than three years and less than ten years in prison,but individuals are excluded from the scope of application of corporate compliance.Third,to clarify the discretionary factors of non-prosecution,the procuratorial authorities need to meet the evidence to “clear facts,evidence,and sufficient”standard before compliance with the enterprise rectification consultation,and the need to meet the social effect of non-prosecution should be better than the effect of prosecution.Fourth,improve the third-party supervision and evaluation mechanism,third-party supervision as the exception rather than the principle of compliance inspection,saving judicial resources and avoiding “paper compliance”;compliance inspection costs are mainly borne by the enterprises themselves,supplemented by public financial subsidies,to avoid large-scale transfer of corporate crime costs to all taxpayers;at the same time,strengthen professional compliance Talent team construction,to ensure that the compliance inspection to practice.Fifth,strengthen the transparency of prosecution services,appropriate public compliance agreements,factual determinations,compliance with regulatory documents,the decision not to prosecute and other materials;adhere to the prosecution hearings “should be heard as much as possible”,and further expand the scope of hearing personnel.