Research On Incentive Mechanism Of Criminal Compliance Of Enterprises

For the ex ante prevention and ex post punishment of corporate crime,the traditional negative prevention and ex post punishment approaches have not been effective enough.The role of corporate criminal compliance,which originated in Western countries,in punishing and preventing corporate crime is increasingly being valued by countries.As a concept full of tension,criminal compliance embodies the concept of positive general prevention of punishment in a risk society,with characteristics such as pre crime prevention and "privatization".The motivation for corporate criminal compliance not only comes from the need for internal risk management,but also from the positive incentives and reverse attribution of national criminal policies.The study of incentive mechanisms for corporate criminal compliance is an important trend and legislative direction in the development of China’s corporate compliance system.Currently,although China has not yet established a clear incentive system for corporate criminal compliance,pilot work has been carried out by procuratorial organs,and a series of criminal compliance incentive measures have been taken,including not prosecuting the enterprises involved in the case of misdemeanor cases or suspending prosecution or mitigating punishment for enterprises that have made effective corporate criminal compliance within the investigation period,These measures have a very far-reaching incentive effect on the construction of the compliance management system for Chinese enterprises.On the other hand,due to the late start of the research on the incentive mechanism for criminal compliance in China,and the relatively small amount of relevant content in criminal law provisions,some practices in judicial practice inevitably have shortcomings.Therefore,this thesis conducts a detailed demonstration around four aspects: an overview of corporate criminal compliance incentive mechanisms,corporate criminal compliance incentive mechanisms and their implications from the perspective of comparative law,the current situation of corporate criminal compliance incentive mechanisms in China,existing problems,and countermeasures for improving corporate criminal compliance incentive mechanisms in China.In the overview section of the incentive mechanism for corporate criminal compliance,the author focuses on analyzing and demonstrating the three major theories in the incentive mechanism for corporate criminal compliance,namely,the theory of positive prevention in criminal law,the theory of cooperative justice,and the theory of vicarious liability of legal persons,based on elaborating the concept and historical evolution of the incentive mechanism for corporate criminal compliance;The corporate criminal compliance incentive system started early in foreign countries and has relatively rich practical experience.Based on an analysis of relevant systems in the United States,the United Kingdom,Canada,and other countries,this article focuses on demonstrating the reasons for compliance as a defense of innocence,compliance as the basis for mitigating criminal law,compliance as the condition for non prosecution,and compliance as the basis for suspending prosecution;The current practice of the criminal compliance incentive mechanism for enterprises in China is characterized by a relatively wide range of applications,a relatively large scope,and diverse compliance rectification models,which also brings a series of problems.In terms of substantive law,including the current "penalty" theory of unit criminal responsibility rules,it is not compatible with the incentive mechanism for corporate criminal compliance in China;The subjective will and legal sentencing circumstances of crimes committed by enterprises’ criminal compliance units have not been clearly stipulated by law;And the applicable scope of the incentive mechanism for corporate criminal compliance and the division of responsibilities of the directly responsible personnel of the enterprise involved.In terms of procedural law,for example,China has not established a compliance non prosecution and suspension of prosecution agreement system for enterprises,and there are unclear issues in terms of specific procedures,such as the duration of the criminal compliance incentive mechanism and the third-party supervision and evaluation mechanism.Finally,on the basis of learning from the criminal compliance incentive mechanism of foreign enterprises,based on the basic national conditions of our country,combined with the characteristics of unit crime in our country,this article proposes targeted countermeasures in terms of substantive and procedural law.In terms of substantive law,improve China’s system of unit crime constitution and corporate criminal liability,and introduce the "unit organizational responsibility theory" into unit crime;Explicitly recognizing the subjective will of the unit in legal provisions;In terms of procedural law,the system of non prosecution of corporate criminal compliance and the system of suspension of prosecution should be incorporated into the Criminal Procedure Law as soon as possible,strengthening the connection between punishment and execution to highlight case handling efficiency,establishing a third-party supervision and evaluation mechanism for corporate criminal compliance,and implementing the effective implementation of criminal compliance plans.