涉案企业合规改革中的单位犯罪附随后果问题

The Collateral Consequences of Corporate Crimes in Corporate Compliance Reformation

公司、企业犯罪的附随后果,会对公司、企业作为市场经济主体的经营资格形成不同程度的限制,其效果与针对自然人犯罪的从业禁止制度类似,严厉程度甚于对单位犯罪适用刑罚的罚金。虽然公司、企业犯罪的附随后果由行政手段实现,但在现行的法律框架之下,应当结合刑法学、行政法学以及宪法学知识予以研究。在司法实践中,应从涉案企业合规改革的目标——“保企业”角度出发,在对合规企业作出合规不起诉决定后,可以建议行政机关不再适用影响企业生产经营的行政处罚;对被定罪的公司、企业,在其合规整改后,行政主管机关可对其不适用限制、剥夺经营资格的行政处罚或保安处分措施。

The collateral consequences of corporate crimes would result in varying degrees of restrictions on their eligibility of company and enterprise as market participants.The impact of collateral consequence is quite similar to employment prohibition applied to natural person who have committed crime.To some extent,these restrictions and deprivation are more severe than criminal fine which is the statutory punishment of corporate crime.Althought the collateral consequences of corporate crimes are regulated through administrative means,under the current legal system,this requires a comprehensive study that combines knowledge from criminal law,administrative law,and constitutional law.If a corporation is determined to be deprived or restricted of its fundamental rights after conviction,the principle of legal reservation should be applied,and those collateral consequences should be stipulated by law.In judicial practice,the goal of compliance reformation is designed to protect corporations.After the non-prosecution decision has been made,administrative authorities shall no longer impose administrative penalties that would undermine the corporations ability to operate.For corporations that have been convicted,after the compliance program has been completed,the administrative authorities could impose administrative penalties or security measures that do not inherently deprive or restrict corporations ability to operate.