全球视野下刑事合规的犯罪学供给研究

A Worldwide Study on the Criminological Supply of Criminal Compliance

从全球视野观察,刑事合规始于20世纪90年代初,21世纪之后迅速发展成为一种全球趋势。刑事合规作为一种预防导向鲜明且伴有刑事法律基础性和规模性调适的全新法律语言及法律规范体系,需要考察研究的不仅包括法律规范,而且应当包括以犯罪学知识供给为中心的法治机制。刑事合规的核心特征是刑法规制的预防转型及其系统呈现,具体包括企业反腐政策的预防转型、涉企刑事立法的预防转型以及涉企刑事司法的预防转型三个层面。在国际社会刑事合规的孕育发展过程中,犯罪学研究奠定了企业反腐法治发展的理论基础,促成了对企业腐败危害性质的认识提升,催生了刑事合规法律制度的形成完善,发挥了不可或缺的关键性作用。面对我国当前刑事合规的刑法激励机制明显不足的关键问题,需要以系统性预防观念引领我国刑事合规的创新发展:一是在观念认知层面确立刑事合规中系统性预防的目标定位;二是在刑事法治层面聚焦于单位犯罪刑事责任的预防转型及其系统呈现,三是在法治机制层面充分发挥犯罪学知识在企业反腐发展中的突出作用。

From a global perspective, criminal compliance began in the early 1990s and rapidly developed into a global trend in the 21st century. As a new legal language and legal system with distinct prevention orientation accompanied by the basic and scale adaptation of criminal law, criminal compliance should be inspected not only by the academic circles of legal norms studies, but also by the academic circles of criminologists whose particular focus is on the law mechanism such as the supply of criminology knowledge. The core characteristic of criminal compliance is the systematic preventive transformation of criminal law within criminal compliance, which includes three aspects, namely, the preventive transformation of anti-corruption policy within enterprises, the preventive transformation of enterprise-related criminal legislation and the preventive transformation of enterprise-related criminal justice. In the process of the development of criminal compliance in the international community, criminology research has laid the theoretical basis for the development of corporate anti-corruption rule of law, contributed to the improvement of the understanding of the harmfulness of corporate corruption, and promoted the formation and improvement of the legal system of criminal compliance. In a word, criminology research has played an indispensable and key role. Faced with the key problem that the current criminal incentive mechanism of criminal compliance in China is obviously insufficient, the innovative development of criminal compliance in China should be guided by the concept of systematic prevention in three ways: the first is to establish the system characteristics and target positioning of systematic prevention in criminal compliance at the level of concept cognition;the second is to focus on the preventive transformation and its systematic presentation of the criminal responsibility of corporate criminal law;the third is to give full play to the prominent role of criminological wisdom in the development of corporate anti-corruption policies and laws.