Research On Compliance Programs In Corporate Crimes Prevention

Seen from the overall tendency,economical criminal norms are enlarging eventually to cope with the diversified economical crimes.However,the crime situation has not been effectively controlled along with the restricting of crime scale seen from the current situation of economical crimes.In this case,it is necessary to rethink the question that whether the single penalty control measure has the ability to cope with economical crimes.Penalty is only a subsequent control measure and the supervision measures are mostly a routine administrative act.Unlike that,economical crimes in corporations are normally occurred in the normalized operation and management.Therefore,the regulation efficiency is inevitably law.Due to the low efficiency of the traditional single control measure in economical crimes control,other measures are needed as functional supplements.As a concept of modern business management,compliance management plays an important role in corporate risk control.The implement of compliance management is also an indication that the corporate is willing to obey norms,which lower the culpability degree.The positive role in crimes control of the compliance management and its natural contact with criminal liability cause the arising of compliance programs.Compliance program,simply speaking,is that the consciously implemented compliance management will be motivated by criminal law.In other words,by means of aggravating or reducing criminal liability,deferred prosecution or exemption from prosecution to promote the implementation of corporate compliance.Even though Compliance program originates from the concept of self-regulation,it differs from self-regulation in the respect of criminal liability.Considering from the point of criminal liability,vicarious liability provides a motivation for the implementation of compliance programs in corporations,collective liability,organizational liability and cultural liability promote the flourish of compliance programs.The issuance of "Sarbanes-Oxley Act"gives compliance management extraterritorial effect,which promotes the further development of compliance programs.We can say that compliance programs have become a global tendency.To the corporate crimes control of our country,it also takes on the tendency of more and stricter.The increase of new crimes,the changes of crime pattern as well as the rising of penalty are all testify of that.In addition,the widely use of special legislation technologies,such as "pocket crimes" and generalization of the legislative expression,plays a role of crime blocking objectively.At the same time,varieties special governance activities have never come to an end.To summarize,the criminal policy of corporate crimes control is generally strict-leading.The problem is that the corporate crime situation was not well controlled.Therefore,it is a problem should be considered that whether we can learn from the concept of corporate compliance to build binary corporate crimes control system.This paper argues that there are necessity,rationality and realistic foundation to draw lessons from compliance management.Firstly,it's necessary to bring in such a new concept due to the rethinking of traditional control model.More importantly,section 404 of "Sarbanes-Oxley Act" gives us the obligation of compliance.Secondly,compliance management has effectiveness in corporate crimes control,which has been denied by some empirical studies though,seen from the logical and actual control result however,affirmative conclusion is more persuasive.Lastly,compliance management has realistic foundation in our country.Compliance management that has been widely implemented in financial industry in our country provides us the foundation to popularize the implementation of compliance management.It is a pity that even compliance management has been carried out in some industries,compliance concept has not interiorized.Therefore,how can we promote the in-depth implementation of compliance management is a problem that should be considered by criminal law,because compliance management aims at controlling crimes and preventing risk,in this case,criminal law can not only stand by.In particular,we can entrust some significance of penalty to compliance management to inspire the implementation of it.It is also a correction for vicarious liability,because compliance management is an indication that the corporation is a good citizen and for this reason its liability is largely reduced.Seen from the perspective of criminal policy,compliance program has carried out the basic two-pole policy in the United States.Our basic criminal policy,namely the policy of "complementariness of leniency and strictness",has the same contains and values with the "two-pole policy",discriminatory penalty in other words.Therefore,the significance in compliance program should also be learned.Even though the penalty for economical crimes is severe in our legal system,there exist also some problems,for example,deficiencies and softness of certain crimes.In judicial process there are also many problems with corporate crimes.Firstly,the dark figures of corporate crimes exist largely due to the failure of punishing.Secondly,criminal cases were regularly disposed with administrative measure.Even being punished based on criminal law,the penalty was largely reduced.For those reasons above,the severity of penalty was largely dispelled.However,for the reason that the situation and outcomes of corporate crimes are very serious,the criminal policy for such crimes should be much stricter.This point is also contained in the policy significance of compliance program,which can be seen from enhancing penalty for financial and other crimes in the "Sarbanes-Oxley-Act".Based on this,we should on one hand perfect the corporate accusation system and enhance penalty of certain crimes.On the other hand,we should also carry out the policy strictly during the judicial process to reflect the severity on the legislation.This paper advocates increasing punishment for corporate crimes,which is not conflict with the tendency that penalty should be lighter and lighter.Firstly,the tendency of lighter penalty does not exclude the enhancing for certain crimes' penalty during certain period.Secondly,increasing penalty in legislation provides more inspiring space for compliance program,which demonstrate the penalty significance of compliance program and promote corporations comply seriously.To further extend,we can build a corporate crimes prevention system that consist of compliance management,enforced self-regulation and penalty.Different from compliance management,enforced self-regulation combines merits of both self-regulation and mandatory regulations.On one hand,the management rules are established combined with one's own situation by corporations.On the other hand,the state has the right to examine and approve the rules.Once the rules are approved by the state,they have restraining force to the corporation.Different from the system of Braithwaite's" three element three layers",I think compliance management and enforced self-regulation are paratactic instead of stereo.Even though,they should be implemented in different industries.For the reason that rules in enforced self-regulation should be approved by the states and the limitedness of the administrative resources,enforced self-regulation can't be implemented generally,but only in those industries that related to the public security and health.We can implement compliance management in other industries.In the control system of mine,penalty is the last choice,but it is very severe.Only with severe penalty can we force corporations to implement compliance management and enforced self-regulation consciously,which also echo the advocating above that we should increase the penalty for corporate crimes.In this system,severe penalty force the implementation of self-regulation.Meanwhile,ultima radio of the penalty reduces the severity of the penalty.Reference of compliance programs has also many problems,such as whether there are conflictions between the administrative management in state-owned corporations in China and the self-regulation environment required by compliance management,whether the special cultural environment permits the promotion of compliance management.Meanwhile,there are also many problems with compliance programs itself,such as the problem of impact to fairness and justice that caused by compliance management,the problem of privatization of criminal procedure that caused by compliance management and the problem how to balance the private right and so on.All these problems need further research.