合规负责人的不作为参与

Compliance Officer’s Inaction Participation

合规负责人是指在企业中从事风险识别、合规审查工作的主体。合规负责人在企业治理中,负有风险识别义务、合规审查义务,保证企业的正常运行。以实质义务论为视角进行考察,合规负责人具有信息优势,因此处于支配地位,当先行行为导致风险升高时,负有监督保证人义务。通过垂直授权没有决策权的合规负责人,仅对于风险的发生具有报告义务,不具有阻止法益侵害发生的义务。合规负责人不作为的刑事责任不宜过分扩张,除义务来源外还应当结合作为可能性进行考察。通过判断合规负责人是否具有成立不作为共犯的实行行为性,得出合规负责人不作为参与原则上应认定为帮助犯。

Compliance officer refers to the entity engaged in risk identification and compliance review work in an enterprise. Compliance officers are responsible for risk identification and compliance review in corporate governance to ensure the normal operation of the enterprise. From the perspective of substantive obligation theory, compliance officers have an information advantage and are therefore in a dominant position. When the prior behavior leads to increased risk, they have the obligation to supervise the guarantor. Compliance officers who do not have decisionmaking power through vertical authorization have a reporting obligation only for the occurrence of risks and do not have an obligation to prevent legal infringement. The criminal responsibility of compliance officers for inaction should not be excessively expanded, and in addition to the source of obligations, the possibility of inaction should also be examined. By determining whether the compliance officer has the ability to establish an accomplice in non action, it is concluded that in principle, the compliance officer’s participation in non action should be recognized as an accomplice.