概念的误区与辨正:从“刑事合规”到“刑事适法”

Conceptual Misunderstanding and Correction:from"Compliance with Criminal Norms"to"Compliance with Criminal Law"

刑事合规的概念使用存在名与实之间的错位。刑事政策语义中的刑事合规所指应当是与企业刑事责任直接相关的法律,也即刑法,而非内涵更泛化的规,合规整改也是为了预防和减少刑事犯罪行为而非其他违法违规行为。究其语词缘起与变迁,法律论域内的刑事合规概念衍变自企业合规这一非法律的概念,但在此过程中“规”的内涵实际发生了改变。对域外合规概念的考察也揭示出其原生词汇在企业治理和刑事法两个不同层面存在着需要辨明的实质区别,且合规只是域外刑事法律体系中的一个子概念而非母概念。所以,“规”的使用是不准确的,未来在概念使用上应当以“适法”来取代“合规”,厘清法和规的分界,使其内涵能更准确合理地融入到现有的法律与法学知识体系之中。

The corporate criminal compliance reform is a practical attempt for the state and enterprises to jointly participate in governance,which has also brought about innovation in legal thinking.In March 2020,the Supreme People's Procuratorate led the exploration of the localization practice of introducing corporate compliance into China's criminal procedure system,and in the following few years,the scope of the compliance reform pilot of the enterprises involved has continued to expand,and has now been fully rolled out in the procuratorial organs across the country.Subsequently,the court system also began to participate in the practice of criminal compliance.However,there is a mismatch between the name and the meaning in the use of the well-known concept of compliance with criminal norms in China.Criminal norms in the semantics of criminal policy should refer to the law directly related to corporate criminal liability,that is,criminal law,rather than more generalized and broad norms and regulations.Compliance rectification is also to prevent and reduce criminal offenses rather than other illegal and irregular behaviors.Therefore,there is an obvious inconsistency between the name and the referred meaning when using expressions such as"compliance with norms"instead of"compliance with law".In terms of the origin and evolution of the term,the concept of criminal compliance in the legal field has evolved from the non-legal concept of corporate compliance.Compliance originated from the field of corporate governance overseas.It refers to a series of internal procedures taken by enterprises to prevent employees from violating laws,regulations,rules and guidelines,etc.,covering not only laws but also broader regulations.To maintain the consistency of concepts,domestic scholars use compliance with criminal norms to express the criminal law meaning of compliance,which refers to the various responses made by criminal law and criminal procedural law to the demand for promoting corporate compliance,but the connotation of norms to comply with has actually changed in this process.The investigation of the concept of compliance overseas also reveals that it has multiple meanings.Its original vocabulary has substantial differences that need to be distinguished at two different levels:corporate governance and criminal law,and compliance is only a sub-concept rather than a parent concept in the overseas criminal legal system.Compliance is just a new factor in the traditional legal system.Therefore,the correct approach is not to discuss how to use law to motivate and promote compliance from the perspective of corporate governance but to start from the original concept of law and discuss how to incorporate compliance,a new development,into a relatively sound legal framework.In the future,the concept of"compliance with criminal norms"should be replaced by"compliance with criminal law"to clarify the boundary between law and norm so that its connotation can be more accurately and reasonably integrated into the existing legal knowledge system.