刑事合规的反思

Rethinking on Criminal Compliance

以合规计划为核心的刑事合规制度,之所以能在以美国为代表的西方国家发挥作用,存在着替代责任和立法定性与司法定量之立法模式两大背景。我国目前不存在这样的理论和制度背景,因而类似制度在我国难以取得预期效果,学者们对于刑事合规制度的引介存在一定程度的误解,在相关误区厘清之前,不宜过早地在我国立法层面引入刑事合规制度。而在解释论层面,刑事合规对定罪量刑都会产生一定影响,但这种影响既非决定性的,也没有超出现有的教义学框架,不宜过分夸大刑事合规的制度价值。相反,鉴于我国的法律体系和制度背景,企业行政合规的倡导是一个更为妥当的解决方案。

The criminal compliance system centered on compliance programs is functioning effectively in Western countries represented by the U.S. with two major backgrounds: the vicarious liability and the legislative mode of "legislation determining qualitative judgments and judiciary determining quantitative verdicts".Due to the current absence of the above-mentioned theoretical and institutional backgrounds, similar systems are unlikely to function as effectively as expected in China.In addition, a certain misunderstanding among scholars does exist in the process of their introduction and description of the criminal compliance system. Thus, the premature formal establishment of criminal compliance system at the legislative level would be inappropriate until related miscomprehensions are cleared up. At the law-interpretation level, the criminal compliance system is influential to some extent for conviction and penal discretion, but such influence is neither decisive nor transcending the present framework of dogmatic criminal law. As a result, excessive exaggeration of the institutional value of the criminal compliance system will be unreasonable. Instead, an advocacy of "corporate administrative compliance" could be a more appropriate solution on account of the specific legal system and institutional background of our country.