刑事合规制度的本土化路径研究

Research on the Localization Path of Criminal Compliance System

2018年常被人称为“合规元年”,起源于美国的合规不起诉制度在我国学界成为热门的话题。在理论上,合规不起诉制度存在我国单位犯罪理论与英美替代责任差异的问题。在实践上,对合规不起诉一期试点进行分析,合规不起诉仍然存在适用范围与应有效果不足的问题。对此应当从域外合规与缓起诉制度进行切入,在厘清合规不起诉制度的运行逻辑基础上,重构企业刑事责任的刑法教义学理论,建立行政与刑事的联合处罚机制,完善对合规不起诉协议的监管,以让合规不起诉制度本土化。

2018 is often referred to as the “first year of compliance”. The compliance non prosecution system originated in the United States has become a hot topic in China’s academic circles. Theoretically, there are differences between the theory of unit crime in China and the alternative liability in Britain and the United States. In practice, the phase I pilot of non-compliance prosecution is analyzed, and there are still problems of insufficient scope of application and due effect. In this regard, we should start from the extraterritorial compliance and deferred prosecution system. On the basis of clarifying the operation logic of the compliance non prosecution system, we should reconstruct the criminal doctrine theory of corporate criminal responsibility, establish the joint punishment mechanism of administration and criminal, and improve the supervision of the compliance non prosecution agreement, so as to localize the compliance non prosecution system.