合规计划有效性评估的制度构成

The System Composition of Effectiveness Assessment of Compliance Programs

刑事合规的核心是能够有效实施的合规计划。合规计划有效性评估的制度构成应涉及评估主体、评估对象与评估讨论等几方面。评估主体应具备专业背景和承担法律责任的能力,因此目前第三方组织作为评估主体的思路有其合理之处,但是在构成方式、人员性质等方面仍值得商榷。合规计划有效性的评估对象应包括合规计划本身及其实施情况。在评估涉案企业的具体合规计划时,应根据合规计划是制定、实施于犯罪之前还是之后,对评估标准略作区分,并遵循坚持动态评估、强调内部评估、尊重常识判断与关注个案报告的原则。评估结论目前是检察机关在起诉阶段作出是否起诉等决定的重要参考。如果未来全面建立起企业合规制度,评估结论还应是审判机关定罪量刑的重要情节,建议司法机关将其明确为鉴定意见。

Effective implementation of compliance programs is the key to the success of criminal compliance. To realize the institutional objective of the compliance program system and adequately and objectively assess the effectiveness of specific compliance programs, the compliance monitor or evaluator should be a third-party actor that can actualize the ideology of decentralizing crime prevention responsibility, is able to assume legal responsibilities independently, and has the proper professional knowledge and competence. The ‘third-party organization’ provisions, although generally acceptable, don’t fully satisfy aforementioned conditions. Therefore, this article suggests that provisions be added to Third-Party Opinions issued by the Supreme People’s Procuratorate, the Ministry of Finance and six other related central authorities in June 2021 to enable corporations themselves to choose a third-party organization with legally required qualifications to design and assess their compliance programs and that corporation should cover the cost of the assessment themselves. Assessment objects of course include compliance programs and their implementation. Considering that no official requirements for the contents of specific programs exist so far, this article suggests that the Third-Party Opinions lay down necessary common elements of compliance programs and provide that a compliance program must be able to address specific risks, accord with the size, business scope, etc. of the corporation in question, cover all involved areas and people and update in light of changes and problems during its implementation. A third-party organization can refer to industrial standards when carrying out the assessment. Meanwhile, people’s procuratorates should adhere to the basic stance that "assessment conclusions of the third-party organization are in principle factual judgement and whether to accept the conclusions is a judicial one" and make their own decisions on key issues, which are different depending on whether compliance programs are designed and implemented before or after the commission of investigated conducts, on the basis of the assessment conclusions they receive. From the perspective of facilitating judicial application, this article recommends that third-party organizations rank the effectiveness of specific compliance programs if they consider them to be effective. A third-party organization should follow the principles of adhering to dynamic assessment, emphasizing internal investigation, respecting common knowledge and paying attention to individual cases in the assessment of compliance programs. Although assessment conclusions can only be used as reference by prosecutors in deciding whether to bring up a criminal charge and take or change compulsory measures such as arrest and confiscation of property according to the Third-Party Opinions, this article suggests that the Supreme People’s Procuratorate includes them in the expert opinions provided for in Criminal Procedure Law because they are important sentencing or even conviction circumstances at the stage of trial.