涉案企业合规改革检察理念及其立法实现路径

Exploring the Procuratorial Concept of Compliance Reform of Enterprises Involved in Criminal Cases and the Approach to Its Legislative Realization

我国涉案企业合规改革由检察机关主导推行。改革中检察机关应遵循平等保护,能动司法,客观公正,公开透明,双赢、多赢、共赢与在办案中监督、在监督中办案等检察理念。涉案企业合规改革检察理念是检察机关依法开展涉案企业合规改革的价值追求和思想指引,其立法实现路径有两条。一是法律原则层面,应明确规定公有制经济与非公有制经济依法平等保护原则、客观公正原则、比例原则与检务公开原则。二是法律规则层面,应将涉案企业合规的适用范围规则规定为涵盖各类市场主体;创设涉案企业合规附条件不起诉规则;完善单位犯罪规则,采取新组织体责任论;增设企业有效合规作为单位犯罪出罪事由与从宽量刑依据;设立行刑衔接相关规则。

China s reform in the compliance of enterprises involved in criminal cases is led by the procuratorial authorities.In the reform,the procuratorial organs should follow such procuratorial concepts as equal protection;proactive justice;objectivity and impartiality;openness and transparency;win-win,multi-win,and common-win outcomes;and supervision during case handling as well as case handling during supervision.The procuratorial concept of compliance reform of enterprises involved in criminal cases is the value pursuit and ideological guidance for the procuratorial organs to carry out compliance reform in accordance with the law,and the approach to its legislative realization includes the following aspects.Firstly,at the level of legal principles,the principle of equal protection of public and non-public economies,the principle of objectivity and fairness,the principle of proportionality and the principle of openness of prosecution should be clearly defined.Secondly,at the level of legal rules,the scope of application of the rules governing the enterprise compliance should be so defined as to cover all types of market players;rules governing the conditional exemption from prosecution of the enterprises involved in criminal cases in certain circumstances should be formulated;the rules governing corporate crimes should be improved and a new organizational responsibility theory adopted;rules of taking the effective compliance as the reason for the decriminalization and leniency in sentencing in handling corporate crimes should be added to the current scheme;and the rules related to the interface between administrative and criminal laws should be established.