行政机关推进合规管理的三种方式

Three Methods for Administrations to Promote Compliance Management

相对于企业自主性合规而言,企业在行政机关推动下所实施的合规管理体系建设具有独特的制度优势。目前,行政机关推进企业合规管理的方式主要有行政合规指导、行政合规强制和行政合规激励等三种方式。其中,行政机关通过发布合规指引等方式为企业合规管理提供指导,已经得到普遍的推行,但还存在着缺乏针对性、缺少有效合规标准以及没有制度保障等方面的问题。行政合规强制制度在一些特定领域中得到初步适用,但还存在碎片化和分散化的问题,没有形成体系化的合规强制机制。行政合规激励机制尽管在证券、反垄断等监督领域得到建立,但适用案例较少,所包含的“以合规换取宽大处理”的制度特征并不明显。未来,根据“预防性监管”和“协商性监管”的理念,在法律中注入更多行政合规指导、强制和激励的制度因素,为行政机关推进企业合规管理提供更大授权和更大空间,这将是一项值得深入研究的重大法律课题。

Compared with the independent compliance of enterprises,the construction of compliance management system implemented by enterprises promoted by administrative authorities has unique institutional advantages.At present,there are mainly three ways for administrative authorities to promote enterprise compliance management:administrative compliance guidance,administrative compliance enforcement and administrative compliance incentives.Among them, "compliance guidance" is an activity for administrative authorities to provide administrative guidance for relevant enterprises to establish or improve compliance management system by issuing "compliance guidelines" or "compliance measures".This kind of compliance guidance is provided by the administrative organ to ensure that the enterprise achieves the goal of effectively preventing the occurrence of illegal and illicit behaviors,and guides the enterprise to establish a set of management system aimed at preventing,monitoring or responding to compliance risks.At present,the provision of guidance on compliance management by administrative authorities through the issuance of compliance guidelines and other means has been generally implemented,but there are still problems in terms of lack of relevance,lack of effective compliance standards and lack of institutional safeguards.Compulsory compliance is another way in which administrative authorities promote the establishment of compliance systems by enterprises.Through the implementation of a "mandatory compliance system",administrative authorities oblige enterprises that meet the legal requirements to establish a compliance management system,and pursue administrative liability for enterprises that refuse to fulfill their obligations.At present,this system has been initially applied in some specific areas,but there are still problems of fragmentation and decentralization,and no systematic compliance enforcement mechanism has been formed.Administrative authorities have introduced the way of " compliance reward " through the compliance incentive mechanism,that is,to reward leniency administrative treatment for the illegal enterprises that carry out effective compliance rectification,establish effective compliance programs and achieve the effect of effectively preventing similar violations,in order to stimulate the enterprise's motivation to engage in the construction of the compliance system,and attract more enterprises to establish compliance management systems.At present,although the administrative compliance incentive mechanism has been established in securities,anti-monopoly and other supervision fields,there are few applicable cases,and the institutional characteristics of "exchanging compliance for leniency" are not obvious.In terms of administrative compliance guidance,administrative authority should guide enterprises to establish a compliance system in accordance with the " risk-oriented compliance model" and,with the help of relevant industry associations,strengthen effective compliance guidance for enterprises engaged in specific industries,issue practical criteria for evaluating the effectiveness of compliance programs,and implement more scientific methods for evaluating the effectiveness of compliance.In terms of mandatory administrative compliance,it is necessary to consider gradually introducing a comprehensive mandatory compliance mechanism in enterprises that have reached a certain scale or have significant compliance risks,strengthening the accountability of enterprises that do not fulfill their compliance obligations,and establishing a qualification certification mechanism for qualified enterprises in compliance construction.In terms of administrative compliance incentives,it is necessary to establish a more systematic pre-compliance incentive mechanism,in-event compliance incentive mechanism and ex-post compliance incentive mechanism.