企业合规改革入刑刍议

On the Criminalization for Corporate Compliance Reform

企业合规改革如何入刑,是当前的热门话题之一。学界主要有两种观点:一种观点认为,企业责任和个人责任分属两种不同的责任,因此,应在现行刑法中单位犯罪规定部分增设专门的企业犯罪和企业处罚条款,另一种观点认为,企业责任和个人责任属于同等责任,因此,可在《刑法》第30条单位犯罪概念中规定企业合规的法律效果。我国现行刑法中有关单位犯罪和处罚规定的特点是,在现行自然人刑法中,规定单位自身犯罪,并对其予以“两罚”,从这种立场来看,可以说企业合规改革,只是表明企业在竭力防止业务活动中的犯罪行为,并不意味着企业制定有合规计划就不构成单位犯罪。因此,将企业合规从宽处罚规定在《刑法》第31条即单位犯罪处罚之中的方案,最为妥当。

How to add the rules of corporate compliance reform to the criminal code is one of the current hot topics.There are mainly two views in the academic circles:one view is that corporate responsibility and personal responsibility are different responsibilities,so special corporate crime and corporate punishment clauses should be added,which are the legal provisions of unit crime in the current criminal law;another view It is believed that corporate responsibility and personal responsibility are equal responsibilities.Therefore,the legal effect of corporate compliance can be stipulated in the concept of unit crime in Article 30 of the Criminal Law.In my country's current criminal law,the regulations on unit crime and punishment present the following characteristics:In the current natural person criminal law,the unit itself is stipulated to commit a crime and"double punishment"is imposed on it.From this standpoint,it can be concluded that corporate compliance reform only shows that companies are trying their best to prevent crimes in business activities,but it does not mean that companies that have a compliance plan do not constitute unit crimes.Therefore,it is most appropriate to stipulate the lenient punishment for corporate compliance in Article 31 of the Criminal Law,which is the punishment for unit crimes.