企业合规背景下单位犯罪与企业文化研究

Research on Unit Crime and Corporate Culture in the Context of Corporate Compliance

企业合规作为预防、发现和制止企业内部违法犯罪行为的内控机制,是企业治理模式的司法探索。当前,我国正处于企业合规改革深入推进的关键时期,经历两轮地方试点后,出现了企业合规理论与传统单位犯罪理论水土不服的问题。通过借鉴域外单位犯罪理论和企业合规理论,在厘清合规制度是“违法阻却事由”还是“责任阻却事由”的基础上,提出应重视企业文化在合规制度中的应用,重构单位犯罪理论,在兼顾刑法责任原则、罪刑法定原则的同时,实现单位犯罪理论向组织责任理论的转变。

Corporate compliance, as an internal control mechanism to prevent, detect and stop illegal and criminal acts within an enterprise, is a judicial exploration of the corporate governance model. At present, China is at a critical moment when the reform of corporate compliance is being further advanced. After two rounds of local pilots, there has been a problem of incompatibility between the theory of corporate compliance and the theory of traditional unit crime. By drawing abroad lessons from the theory of unit crime and the theory of corporate compliance, and on the basis of clarifying whether the compliance system is “the cause of preventing violation of law” or “the cause of preventing responsibility”, it is proposed that the application of corporate culture in the compliance system be emphasized, and that the theory of unit crime be reconstructed so as to realize the transformation from the theory of unit crime to the theory of organizational responsibility while taking into account the principles of criminal law liability and a legally prescribed punishment for a specified crime.