The fourth Criminal Law Special Forum
Theme : Criminal Compliance and Unit Crime
Time : June 25, 2022
Location : Tencent Meeting Online
Main : Law School of East China Normal University , Hongkou District People's Procuratorate of Shanghai
Co-organized : Criminal Law Research Association of Shanghai Law Society, Case Law Research Association of Shanghai Law Society, Legal Branch of Renmin University of China Press , Daxia Compliance Project Group
Manuscript compilation and proofreading : Zhou Mengjie, Ye Yuhan, Zhang Yijing, Yang Anbao, Yuan Yuxin, Li Lin, Wu You, Zhang Ruiyan, Ji Yuelei, Wang Xiaowen.
Source : School of Law of East China Normal University
June 25, 2022At 8:30 am, the 4th Criminal Law Special Forum with the theme of "Criminal Compliance and Unit Crime" was held online at Tencent Conference. The forum is co-organized by the Law School of East China Normal University and the People's Procuratorate of Hongkou District, Shanghai, and co-organized by the Criminal Law Research Association of Shanghai Law Society, the Case Law Research Association of Shanghai Law Society, the Law Branch of Renmin University of China Press, and the Daxia Compliance Project Group. The forum is divided into five units, involving keynote speeches, theme reports, special seminars and roundtable salons. The theme reports of the second and third units are "Unit Crime Governance and Criminal Responsibility from the Perspective of Compliance" and "Criminal Compliance Orthologies and Applications". The corresponding themes of the special seminars in the fourth unit and the roundtable salons in the fifth unit are "Exploring the Compliance Non-Prosecution System" and "Attorney Participation in Compliance Non-Prosecution". This forum was fortunate to receive support from more than 30 colleges and universities and more than 20 judicial practice departments across the country. The number of online live broadcasts has accumulated more than 10,000 people, and there are "no empty seats" in the online conference room.
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Opening Ceremony
Opening Ceremony
The first guest to deliver a speech was High-level professor of liberal arts and dean of the School of Law of East China Normal University High-level professor of law of East China Normal University and Professor Zhang Zhiming first expressed his sincere gratitude to the guests for their long-term attention and love for the Law School of East China Normal University, and briefly introduced the development history of the Enterprise Compliance Research Center of the School of Law of East China Normal University, and finally expressed his sincere expectations and wishes for the successful holding of this forum.
The second guest of the speech was vice president of the Criminal Law Research Association of Shanghai Law Society Zhang Jian . Vice President Zhang Jian first expressed his sincere gratitude to the warm invitation of the School of Law of East China Normal University, and highly praised the theme of this forum. He expressed his great expectations for the wonderful speeches of all the experts, scholars and practical elites at the meeting. Finally, Vice President Zhang Jian extended warm congratulations on behalf of the Criminal Law Research Association of the Shanghai Law Society to the successful convening of this forum.
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Unit 1 Keynote speech
Unit 1 Speech session in unit 1 Shanghai School of Criminal Justice tenured professor and doctoral supervisor Yan Li .
The first speaker was Sun Guoxiang from the School of Law of Nanjing University.Professor Sun Guoxiang gave a speech on the topic of "Criminal Law Incentive for Enterprise Compliance and Attribution Model for Unit Crimes". He gave a speech on four aspects: two different attribution models of legal person crimes, the attribution basis of unit crimes in my country's criminal law, how to determine the organizational responsibility of the unit, incentives for enterprise compliance, and attribution model for unit crimes. First, Professor Sun pointed out that the attribution model for legal person crimes is mainly divided into two types, namely the joint attribution model based on the crimes of unit members and the organizational responsibility model based on the unit itself. The joint attribution model is based on the principle of alternative responsibility and the principle of same view. The organizational responsibility model of the unit itself believes that the basis of the criminal responsibility of the unit is organizational fault. The real and substantial reason for the unit's responsibility is not the criminal behavior of the employees, but the violation of the unit's own obligations. According to the organizational model, criminal behaviors within the enterprise are caused by organizational negligence of the enterprise. Therefore, the punishment for the enterprise is not based on individual crimes, but on the unit's own responsibility. Second, regarding the basis for the attribution of unit crimes in my country's criminal law, Professor Sun Guoxiang believes that unit crimes in my country's criminal law should be the responsibility of the unit organization. First, from the perspective of the provisions of the Criminal Law, the responsibility for the crime of a unit crime in my country is not dependent on the members of the unit; secondly, the units and members of the unit have different attribution basis in the unit crime. The criminal will of an unit is different from the personal will. The crimes of an unit member participating in the unit originate from the will of an individual crime. Unit members are only responsible for their participation in the crimes of the unit and are not responsible for the crimes of the unit beyond their participation in the acts of the unit. Third, in the determination of the organizational responsibility of the unit, there are the following situations: crimes committed by the unit decision-making body directly; crimes committed by the unit leader decision and consent; supervision negligence liability arising from the criminal unit caused by management negligence caused by the criminal unit authorized or tolerated by the unit members for the interests of the unit. Fourth, Professor Sun pointed out that differences in the attribution model of crime in the unit will produce different incentive models. Criminal compliance incentives under alternative liability mainly focus on corporate post-compliance, and criminal compliance incentives under joint and several liability are limited to enterprises. Compliance incentives under the organizational model focus on both pre-compliance and post-compliance. The unit's pre-compliance plan can hinder the unit's criminal liability. Post-compliance can be used as a basis for non-prosecution or lighter sentences.
The second speaker is the director of the Legal Policy Research Office of the Supreme People's Procuratorate Gao Jingfeng . Director Gao Jingfeng combined theory with practice and took the theme of "Three Combinations of Compliance of Enterprises involved in the case", and conducted in-depth discussions from three aspects: the combination of entity and procedure, the combination of punishment and incentives, and the combination of criminal and administration and industry supervision. First, Director Gao Jingfeng briefly introduced the basic situation and significance of the procuratorate in promoting compliance with the enterprises involved in the case. Director Gao believes that the promotion of compliance of enterprises involved in the case is an important measure to implement Xi Jinping's thoughts on the rule of law, implement the central government's equal protection of all types of market entities, and implement the spirit of General Secretary Xi Jinping's speech at the symposium of private entrepreneurs. In the process of the procuratorate promoting compliance with enterprises involved in the case, it has gradually been recognized by all sectors of society. Secondly, Director Gao conducted an in-depth analysis of the main legal issues encountered by the procuratorate in promoting compliance with the enterprises involved in the case. In the current process of promoting compliance of enterprises involved in the case, there are some problems with the entity and the procedure. The main reason is that there are limitations in the application of procedures. What can be used is mainly relative non-prosecution and absolute non-prosecution. Among them, there are different opinions on whether absolute non-prosecution can be applicable to compliance of enterprises involved. Finally, Director Gao Jingfeng unfolded his views on how to promote compliance with the company involved from the three perspectives of the three combinations of compliance with the company involved. It further pointed out that the three combinations of entity and procedures, punishment and incentives, criminal and administrative and industry supervision need to be used as a starting point to encourage enterprises to comply with regulations and establish and improve modern enterprise systems.
The first unit talk session was hosted by Professor Xie Wangyuan .
The first guest talks with him is Professor Li Xiang . Professor Li Xiang talked about two parts: "Slow handling of enterprise compliance" and "the direction of unit crime correction". Professor Li Xiang believes that three prerequisite issues need to be considered in order to handle corporate compliance slightly. First of all, we must clarify the original intention of the enterprise compliance reform system. Enterprise compliance is a top-down reform with Chinese characteristics led by . In the British and American legal systems, the focus is on solving the problems of enterprises. In my country, in the process of learning from and promoting this reform, there has been a series of institutional arrangements such as not only letting go of enterprises, but also letting go of natural persons, which may cause a series of problems; secondly, in the process of performing duties, the Supreme People's Procuratorate must implement institutional reform in accordance with the responsibilities and powers granted by the Constitution, which is to not arrest or prosecute according to the law; finally, it is necessary to clarify the impact of unit crimes on units. The only consequence of criminal crimes in my country's unit is fine. Under the current criminal system, it is necessary to consider how much impact it will have on the slower handling of corporate compliance for enterprises involved. Next, Professor Li Xiang discussed the direction of unit crime correction from five aspects. First, the types of punishments for unit crimes need to be diversified. There are problems with the types of crime punishment system for unit crimes in my country, and even the punishment for crimes in some units will be lower than administrative penalties. Therefore, the types of punishments for unit crimes can be enriched and diversified, such as adding qualifications. Second, the differentiated setting of fines. In the crimes of unit crimes in my country, different sentences are set for natural persons, but only fines are set for units. Therefore, differentiated fines for crime punishments in my country's unit are the second direction of reform. Third, the direction of the criminal system arrangement is revised; my country's existing criminal system is set up for natural persons. After the 97 Criminal Law has added unit crimes, no institutional arrangements are made for their criminal system, such as the unit surrender and the unit's meritorious service. Fourth, consider the crime of negligence of the establishment of an additional unit and increase the unit's attention obligations. Fifth, consider the need to add preventive obligatory crimes to promote the establishment of corporate compliance from the perspective of pre-incentives.
The second guest talked to the talk was the director of the Research Office of Nanjing People's Procuratorate Li Yong. Director Li Yong shared his unique insights from three aspects: the essential connotation of corporate compliance, the corporate compliance consultation governance model, and diversified incentive measures. First, the essential connotation of corporate compliance is to transform the governance structure of the enterprise and reshape the corporate culture by establishing a set of compliance management system. Theoretically speaking, corporate compliance is not simply a legal issue, but more importantly, a corporate governance theory, a corporate management theory. Second, corporate compliance, as a consultative governance model, should not become a criminal obligation of the enterprise. As a new corporate governance theory, corporate compliance is introduced into the legal framework, and is a negotiated governance model, just like the lenient system for admitting guilt and accepting punishment. As a white-collar crime, due to the complex internal structure of the enterprise, the cost of investigating illegal crimes in the state is very high. Then, this investigation cost and national governance cost can be reduced through a model of self-consistent enterprise (self-management) and incentives provided by the state. This is the negotiated governance model. Third, in terms of the diversification of incentive measures, Director Li Yong expressed his strong agreement with Professor Sun Guoxiang's diversified constructive opinions from the perspective of building criminal incentive measures. At the same time, he said that Director Gao Jingfeng's views on criminal incentives, administrative incentives and other compliance incentives from the perspective of combining incentives and punishments are also very inspiring.
The second stage of the speech session was hosted by Professor and doctoral supervisor of Kaiyuan Law School of Shanghai Jiaotong University Zhang Shaoqian .
The first speaker was Tsinghua University Law School Li Hong .The theme of Professor Li Hong's speech was "The Foundation of Substantive Law and its Reforms for Enterprise Compliance and No Prosecution". Professor Li Hong's speech was carried out from four aspects: problem awareness, traditional unit crime concepts and problems, organizational criminal responsibility theory and enterprise compliance non-prosecution, and legislative amendment to unit crime provisions in the current criminal law. Teacher Li Hong first pointed out that corporate compliance and non-prosecution provide an excellent opportunity to examine unit crimes and their application in my country's criminal law. At the same time, the system itself has challenges in both procedural law and substantive law. In order to provide a solid foundation for this system, it is necessary to embed it on the relevant content of the criminal law based on existing laws. Secondly, the traditional concept of unit crime understands unit crime as individuals in the unit, committing crimes for the benefit of the unit, and limiting unit crimes to actions decided by unit leaders or collective decisions of units. This traditional view deviates from the original intention of Article 30 of the Criminal Law and does not conform to some situations of unit crimes in actual life. Thirdly, the organizational criminal responsibility theory explores the essence of unit responsibility based on the characteristics and purposes of the organization, and believes that corporate crime is essentially the result of the comprehensive organizational system, goals, purpose, and the business qualities of the organization and personnel of the enterprise. Article 30 of the Criminal Law can be used to introduce the theory of criminal responsibility of the organization. Finally, under the theory of criminal responsibility of the organization, unit crime includes three aspects. First, unit crimes are the crimes of the unit itself, including intentional and negligent crimes, and the actions performed by the unit leaders based on the intention and decision of the unit or the unit leaders' own authority are all attributed to the unit itself; second, the business violations of the lowest-level practitioners of the unit, as long as they are reflected in the unit's own intentions, can also be regarded as the unit's own behavior, and the unit can be held accountable based on this; third, due to the division of labor or the replacement of responsibilities within the unit, the specific infringement of the perpetrator; or several branches or departments within the unit cooperate with each other to jointly cause the infringement of legal interests, but cannot attribute the specific result to which branch (department), if the actions of the aforementioned perpetrator or branch are gathered together to reach the level of prosecution of the crime, the unit itself shall be held accountable. Finally, Teacher Li Hong suggested that on the basis of Article 31 of the Criminal Law, "when the unit formulates a compliance system that properly prevents the occurrence of crimes and implements it seriously, it can be free of criminal responsibility", so as to provide a substantive legal basis for the enterprise compliance non-prosecution system to eliminate substantive legal obstacles under the double penalty system of my country's unit, and thus provide room for explanation for the existence of unit negligence crimes.
The second speaker is a full-time member of the Procuratorate of Shanghai Municipal People's Procuratorate Ruan Zhujun . The topic of the speech by Mr. Ruan’s Special Committee is a practical exploration of compliance of enterprises involved in the case - from individual cases to industry. The Ruan Special Committee first reviewed Shanghai's practical exploration of compliance work in enterprises involved in the case and introduced Shanghai's relevant systems and typical cases on corporate compliance work. Secondly, from the perspective of individual cases, the Ruan Special Committee explores the review focus of the effectiveness of the construction of the compliance system: First, whether the company involved in the case recognizes compliance risks and stops violations, which constitutes the premise and basis for the company involved in the case to carry out compliance construction; Second, whether the company involved in the case formulates and implements a special compliance rectification plan. In practice, whether the company can prevent the same or similar illegal and criminal behavior from happening again is the focus of judging whether the special compliance plan formulated by the company involved in the case is effective; third, the company involved in the case must form an effective compliance management system. When judging whether an effective compliance management system is formed, you need not only pay attention to some technical indicators, but also the construction of a compliance culture, avoid false compliance and achieve substantial compliance. Finally, the Nguyen Special Committee proposed that the unit’s crime governance can be promoted through industry compliance, and discussed it from three aspects: the basic situation, necessity and promotion focus of industry compliance. Industry compliance requires the establishment of a compliance mechanism for enterprises involved in the case covering the entire chain of pre-, during and after-events, and a professional assessment of common compliance risks is made under the supervision of the procuratorate and the organization and coordination of industry associations. Industry compliance is conducive to the rectification of special compliance, promoting the governance of unit violations and unit crimes, and achieving the ultimate goal of compliance reform of enterprises involved in the case.
The second phase of the talk was hosted by Professor and Doctoral Supervisor of East China University of Political Science and Law Yang Xingpei . The second phase of the talks were Li Bencan, Professor of , Shandong University Law School, and Jiang Su, Associate Professor of , Peking University Law School, and Peking University Law School, respectively.
First of all, Li Bencan Professor Li Hong's view on the attribution model of unit crimes and explaining Article 30 of the Criminal Law from the perspective of responsibility principle can indeed deduce the view of organizational responsibility theory, but the core of the problem lies in what role does people play in the determination of organizational responsibility. Secondly, Professor Li Bencan briefly reviewed the criminal responsibility of the unit from the perspective of academic history. From alternative responsibility to system responsibility, the legal images of people in the organization are constantly being blurred. However, the viewpoint of alternative responsibility and systematic responsibility does not comply with the provisions and actual situations of our country's criminal law, and should return to the organizational responsibility in the intermediate form. In an organization, the leadership collective represents the organization because compliance obligations are the overall obligations of the leadership collective. For example, Articles 37 and Article 46 of the of my country's Company Law all reflect this. Moreover, understanding organizational responsibility from the perspective of leadership collective does not violate the principle of responsibility. Finally, Professor Li Bencan believes that the adoption of a binary legislative model for unit crimes does not conform to China's reality and will also lead to the falsehood of unit crimes. And borrowing the views of Wuhan University teacher Chen Jinlin, a large number of corporate compliance and non-prosecutions may lead to the following five problems: First, it may infringe on the business freedom of the company; second, it may lead to the non-involved company obtaining an improper operating environment; third, it may cause consumers and creditors to lose a signal mechanism for enterprises to exit the market, fourth, it may lead to the loss of the optimal social allocation plan; fifth, it may weaken the normative effectiveness of the criminal law itself. In addition, Teacher Li believes that a large number of compliance and non-prosecutions may also impact the principle of adapting crimes and punishments to , , and the principle of legal crimes and punishments to , and the principle of equality for everyone in criminal law is not in line with the nature of compliance. Therefore, non-prosecution of compliance should be applied as an exception.
Jiang Su Professor 1 commented on the report of Ruan Special Committee from five aspects. First, Mr. Jiang Su believes that it is very important to distinguish between regular compliance and unconventional compliance. From an ideal perspective, regular compliance is obviously more important. Unconventional compliance, namely criminal compliance, is conducive to improving the current situation of chaos in the management of private enterprises in my country and even illegal and criminal activities. Second, industry compliance is crucial because in different industries, compliance matters and standards vary. Industry compliance is horizontal compliance. In addition, vertical compliance needs to be considered, such as data compliance, tax compliance, and intellectual property compliance. Third, how to implement and guide enterprises involved in the case to establish an effective compliance system is the most critical link in enterprise compliance reform. Fourth, regarding the relationship between administrative compliance and criminal compliance, Mr. Jiang Su believes that administrative compliance is more critical compared to criminal compliance. Corporate compliance reform is to a certain extent related to the serious lack of administrative compliance. Fifth, in the process of enterprise compliance reform, attention should be paid to the establishment of national standards, and local characteristics should not be overly highlighted. Because the issues about corporate compliance are universal, local governments can make some useful explorations based on local conditions, but more importantly, establish a nationwide unified evaluation standard.
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Unit 2 Theme report: Unit Crime Governance and Criminal Responsibility under the Perspective of Compliance
This unit is themed "Unit Crime Governance and Criminal Responsibility under the Perspective of Compliance". It is hosted by Fudan University Law School Professor Du Yu and Procurator General of the People's Procuratorate of Minhang District, Shanghai Hu Chunjian , Beijing Normal University Law School Zhou Zhenjie , and Ph.D. student of East China University of Political Science and Law Pan Lu , Associate Professor of Law School of Huazhong University of Science and Technology Li Guanyu , Shenzhen Bao'an District People's Procuratorate Director Huang Meihua Report, Professor of Northwest University of Political Science and Law and Dean of the Institute of Enterprise Compliance Fu Yuming and Zhejiang Guanghua Law School Ye Liangfang participated in the talks.
The first speaker is Professor Zhou Zhenjie from the School of Law of Beijing Normal University. The report is based on the theme of "Unit Criminal Responsibility from Compliance Perspective: Theoretical Analysis and Law Amendment Suggestions". Professor Zhou Zhenjie's report is divided into four parts. The first part is "Enterprise Compliance and Criminal Responsibility", the second part is "Contact Points of Unit Responsibility Theory", the third part is "Thoughts of Ideas for the Amendment of Unit Criminal Law", and the fourth part is "Suggestions for the Amendment of Unit Criminal Law".
First, Professor Zhou Zhenjie asked three questions. First, Article 31 of the Criminal Law stipulates two penalties principles: "double penalty system" and "single penalty system". In cases where the "double penalty system" is applied, the enterprise is the criminal subject , and requires it to undergo compliance inspection to have a sufficient normative basis. In cases where the "single penalty system" is applied, because the company is not specified as the criminal subject, and corporate compliance usually has certain punitive measures, which may lead to different opinions. Second, is there sufficient basis for deciding not to prosecute the individual involved in the case based on the reason why the company has effectively fulfilled its compliance commitment? Third, the reform pilot is currently limited to the review and prosecution stage, and it is difficult to fully utilize the functions of the compliance system of the enterprises involved in preventing corporate illegal behaviors and optimizing the business environment. It should be considered extending it to the trial stage.
Secondly, the controversy about the unit responsibility theory. Professor Zhou Zhenjie believes that because my country's criminal law has always adhered to the principle of responsibility, there will be some controversy in the criminal responsibility of an organization from a compliance perspective. Regarding corporate compliance and criminal liability, the first thing to answer is, what are the specific contents of corporate responsibility? Is it the same as an individual?
Again, the idea of revision of the criminal law of unit crimes. Professor Zhou Zhenjie pointed out that to answer this question, we must clarify the nature of the unit’s crime? Only by determining the nature of the unit's crime can the nature of the unit's criminal liability be determined. Only after determining the nature of the criminal liability of the unit can the criminal legislation logic of the unit's crime be clarified. Professor Zhou Zhenjie believes that there are certain differences between my country's legislative provisions and the current judicial status of the judicial system regarding the constituent elements of corporate criminal liability. According to Article 30 of the current Criminal Law, the main body of unit crime is the unit, but in practice, unit crime is actually treated as an enlarged version of personal crime. This difference originated from the fact that my country has certain differences in the nature of unit crimes. Unit crime is different from personal crime. It is a thing that arises with the development of history, especially the industrial revolution, and is essentially the result of criminal policy choices. The nature of the unit’s crime determines the nature of the unit’s criminal liability, that is, the unit’s criminal liability is also a choice of criminal policy. Since the nature of criminal liability between individuals and units is different, it can be considered that the logic of unit criminal legislation is a dual logic, which should be different from the legislation of individual criminal liability, but does not mean the formulation of two codes, but should separate them in certain aspects of logic and constituent elements.The dualization of the constituent elements will also be the binary logic. At this time, personal responsibility judgment continues the traditional judgment logic, while corporate responsibility judgment adopts relatively objective judgment logic, that is, after determining that the result of the behavior is criminally illegal, we first judge whether the enterprise has carried out effective compliance governance. If the answer is yes, it can be denied that the enterprise should bear criminal responsibility; if the answer is no, it is presumed that the enterprise needs to bear criminal responsibility. Of course, in the case of negligence, we must also judge the causal relationship between the harmful consequences and the defects in compliance governance, and finally see whether there is a reason for defense.
Finally, suggestions on amending the Criminal Law of Unit Crime. Professor Zhou Zhenjie believes that certain modifications can be made to the following laws and regulations: (1) Article 14 adds the second paragraph to take whether to conduct effective compliance governance as the basis for the unit’s intentional judgment. (2) Article 15 adds the second paragraph to treat "inappropriate" or "inadequate" performance of compliance obligations and resulting social harm results as a unit's negligence crime. (3) Article 30 can delete the restrictions on "laws stipulated as unit crimes". Of course, this does not mean that the enterprise compliance system must be applied to all enterprises or all cases, or the compliance system must be applied to all crimes, but must be selected by the procuratorate or the people's court based on the specific circumstances. At the same time, in Article 31, "active compliance governance" is regarded as a sentencing case. The individual involved in the case separates them from the unit’s crimes and is directly punished according to the corresponding provisions of the Criminal Law. (4) In the second paragraph of Article 37, adding "or unit" after "person", that is, the prohibition of employment should also apply to natural persons and units. (5) Added the "unit recurrence system", that is, "If an unit sentenced to a fine of more than 400,000 yuan, if the unit is sentenced to a fine of more than 400,000 yuan within five years after the execution of the sentence or after the pardon is completed or after the pardon is completed, the punishment shall be imposed in accordance with the provisions of the preceding paragraph, except for the unit's negligence crime." (6) Added the "unit probation system", that is, in Article 72, "For units sentenced to fine of less than 400,000 yuan and obtained the victim's understanding, the probation may be declared." It also stipulates that "units declared probation should undergo compliance inspection, and the supervision period shall be determined by the people's court based on the case situation, but the maximum period shall not exceed five years."
The second speaker is a doctoral student at East China University of Political Science and Law Pan Lu. Pan Lu expressed her gratitude to the forum organizers and co-organizers, and gave a report on the theme of "The value shift in unit crime governance under the background of criminal compliance - and the path choice for corporate compliance non-prosecution".
Pan Lu pointed out that the introduction and implementation of criminal compliance in the field of criminal law in my country will inevitably touch on the crime system of my country's unit, including basic issues such as the conditions for establishment, the connotation of responsibility and procedural rules. Among them, the issues related to the introduction of the non-prosecution system for enterprise compliance are also particularly prominent. At present, there is no clear standard or unified form for corporate compliance failure. The key to such a problem is that it has failed to clearly analyze the transformation of the substantive essence of unit crimes under the background of criminal compliance. Dr. Pan Lu believes that by analyzing the causes and characteristics of the value shift in unit crime governance under the background of criminal compliance, it can provide inspiration and guidance for the rational construction of a localized enterprise compliance non-prosecution system. It will also help more progress in research on unit crime governance under the background of criminal compliance, and will not fall into the quagmire of the imported product paradigm.
Pan Lu gave a specific interpretation from the following four aspects:
First, about the causes of the value shift in unit crime governance. The overall weakness of criminal doctrine in my country's unit and the accelerated penetration of criminal compliance are the internal motivation and external incentives that trigger the shift in the value of unit crime governance.
Second, characteristics of the value shift in unit crime governance. The governance of unit crimes under the background of criminal compliance reflects an inherent value shift in criminal rules, criminal penalties, governance objects and judicial mechanisms.
Third, the current status of unit crime governance has not yet reflected the value shift. At this stage, unit crime governance still cannot fully clarify the standards for unit crime identification, nor can it fully realize the purpose of preventing crimes in private enterprises, and has not yet reached the decriminal governance model of enterprises.
Fourth, build a localized enterprise compliance non-prosecution system to achieve value shift. The construction of corporate compliance and non-prosecution has both theoretical roots and practical foundations. Taking an effective compliance plan as the core of the system, establishing a binary governance model for non-prosecution by enterprises and applying differentiated standards for non-prosecution by compliance is a reasonable path to improve the current situation of unit crime governance and is also a way to realize the value shift in unit crime governance under the context of criminal compliance.
First of all, an effective compliance plan should be the core of the system; secondly, establish a binary governance model of enterprise compliance and non-prosecution. In the process of exploring compliance and non-prosecution, the procuratorate has created a prosecutorial recommendation model and a compliance investigation model. Finally, differentiated standards for establishing non-prosecution for corporate compliance are applicable. Overall, the intrinsic value of unit crime governance in the context of criminal compliance has undergone a transformation from traditional unit crime governance, but this transformation has not yet been reflected in specific unit crime governance. In the context of criminal compliance giving enterprises the right to actively defend, procedural law at this stage is more conducive to achieving the value shift in unit crime governance under the context of criminal compliance, but the construction of procedural system should neither directly quote imported products nor make arbitrary judgments if it is separated from the status quo.
The third speaker is Li Guanyu Associate Professor at the School of Law of Huazhong University of Science and Technology. Professor Li made a report on the topic of "On the judgment of sentencing responsibility in the incentive mechanism of compliance plan". The report is divided into three parts. The first part is the raising of the problem, the second part is the basis for the legitimization of lenient punishment for compliance plan, and the third part is the judgment of sentencing responsibility under the incentive of compliance plan.
In the first part, Professor Li believes that my country's current compliance plan incentive mechanism has methodological flaws in the application process. In order to effectively implement the compliance plan, a robust incentive mechanism must be established. This report mainly discusses how to better establish a sentencing mechanism for corporate compliance. Professor Li said that my country has already carried out pilot work on enterprise compliance in an orderly manner based on the experience of foreign compliance programs, and has conducted preliminary explorations in system construction and practical operations. In the process of applying the criminal law, compliance as a lighter sentencing model has been widely used in the process of reform of compliance non-prosecution led by some local procuratorates, and has achieved good legal and social results. However, due to the limitations of the current legislation mentioned by Mr. Zhou Zhenjie, the simplicity of the judge's reasoning and the low level of criminal law doctrine, the judicial authorities did not elaborate on its functional positioning in detail during the process of sentencing based on the formulation and implementation of the compliance plan, which is not clear whether the formulation and implementation of the compliance plan is the responsibility or the prevention. Professor Li believes that by clarifying the functional boundaries of sentencing responsibility, the compliance plan can be accurately evaluated and the reasonable release of its sentencing leniency effect can be released. Moreover, considering the application basis and conditions of probation, since the defendant can be probated, it itself shows that his crime is lighter, his personal danger and less need for prevention, which is naturally the result of a comprehensive evaluation of the responsibility sentence and the preventive sentence. Therefore, considering the above points, the problem awareness of this report is to start from the sentencing incentive mechanism of the compliance plan, focusing on studying the issue of sentencing responsibility judgment in this process, and studying the issue of judgment of sentencing responsibility will also involve the basis for legitimizing the punishment. Part 2 of the
report, on the basis of legitimizing leniency punishment for compliance plans. Professor Li believes that it can be seen from relevant documents that the "recoverability theory of legal interests" tends to be used as the theoretical basis for corporate compliance and non-prosecution.However, Professor Li believes that this theory lacks accurate grasp of the basis for lenient punishment for compliance plans, which is mainly reflected in three aspects: First, the statement of legal interests recovery is not very accurate. The restorability of legal interests is actually a plausible term, and the repairability of legal interests damage is an accurate concept; secondly, in terms of scope of application, compliance plans should not be applied to unit crimes that have committed serious crimes; finally, the analysis of collective legal interests or collective legal interests may usually be ignored in practice. From these aspects, Professor Li conducted an analysis from the perspectives of the possibility of criticism, the necessity of prevention and policy, and believed that pre-compliance can reduce the infringement of legal interests of the units involved or reduce the possibility of criticism, while post-compliance can reduce the possibility of criticism or reduce the necessity of prevention. Part 3 of the
report, on the judgment of sentencing responsibility under the incentives for compliance programs. Professor Li proposed that the principle of judging quantitative responsibility includes the principle of restricting penalties and the principle of punishment based on the principle. Professor Li agrees with the one-sided responsibility theory, which is conducive to the lenient sentencing function of compliance plans. In addition, Professor Li tends to be the theory of responsibility purification and prevention responsibility theory, that is, preventive factors should not be considered when judging responsibility. Professor Li believes that this is a form of responsibility theory with normative significance, and can avoid the current regulations on the compliance inspection system that do not distinguish between illegality and responsibility, responsibility and prevention, and is basically consistent with my country's sentencing practice and the reform direction of standardization of sentencing.
Finally, in terms of the application of sentencing responsibility, Professor Li mainly examined the judgment of sentencing responsibility in three types of special compliance plans: financial compliance, bill compliance and environmental compliance.
The fourth reporter is the director of the Second Procuratorate of Bao'an District People's Procuratorate of Shenzhen City Huang Meihua . Director Huang Meihua made a report on the theme of "Company Compliance and Leniency Sentencing Recommendations for Compliance and Leniency Sentencing". The report is divided into three parts: First, the era background of compliance and lenient sentencing for Compliance and Leniency of Sentencing for Compliance and Leniency of Sentencing for Compliance; Second, the source of lenientness for enterprises; Third, applicable circumstances and specific applications.
report, the era background of the lenient sentencing of the enterprises involved. Director Huang proposed that after two phases of pilot projects, the Supreme People's Procuratorate held relevant meetings and made arrangements for comprehensively promoting the pilot work of reform. Judging from the data released by relevant meetings, the pilot work of enterprise compliance reform has entered a period of in-depth development. As the first batch of pilot units, the Bao'an District Procuratorate has focused more on compliance and no prosecutions for more than two years, and has less lenient sentencing for compliance. There are two reasons. One is that the handling of non-prosecution can form a greater incentive and demonstration effect compared to prosecution; the other is that the obstacles to compliance non-prosecution itself are more prominent and there are many doubts. In practice, there are many difficulties in not prosecuting corporate compliance. There are three main points: First, the incentives for compliance are insufficient, and the cost of investment and expected value of the enterprises involved are not proportional to the expectations; Second, if the enterprises involved are sentenced to fines and the individuals involved are sentenced to free punishment, it is difficult to balance the sentence between the two; Third, the issue of separation of responsibilities between enterprises and natural persons. Part 2 of the report
, on the basis for compliance and lenient sentencing of the enterprises involved. Director Huang believes that compliance leniency has independent value and is manifested in the following two aspects: First, compliance leniency can promote the standardization of sentencing; Second, compliance leniency is an important catalyst for converging compliance governance. In the process of compliance lenient treatment, the public security, procuratorate and courts and multiple units participated together, which can better demonstrate the situation of enterprises in compliance and rectification, as well as the combination of enterprise compliance with the Criminal Law and Criminal Procedure Law. Therefore, compliance leniency is not only a way of handling, but also a reflection of the concept of compliance that is deeply rooted in people's hearts. Part 3 of the report
, regarding the application of lenient sentencing for enterprise compliance. Compliance leniency does not mean that as long as the company meets the applicable scope or conditions, it will definitely be able to obtain leniency.This will cause problems, such as whether there are boundaries for corporate compliance lenient as a criminal policy? The analysis was conducted on the two typical cases of enterprise compliance released by the Supreme People's Procuratorate. In these two cases, the procuratorate still filed a lawsuit against the enterprises involved and the responsible persons based on the rectification of enterprise compliance. Judging from the information provided by the case, the biggest reason for prosecution is the circumstances of the crime and its statutory sentence. Director Huang believes that this has actually gone through two value judgments. First, we must judge whether compliance rectification is applicable, and secondly, we must consider the effect of this plan. It should be noted that compliance lenient sentencing does not apply to situations where the circumstances of the crime are serious and the statutory sentence is high. If the company involved has a record of a criminal record or is suspected of multiple crimes, it is not suitable for non-prosecution, but lenient can be given. Another question is whether the leniency effect of compliance is comparable to that of natural persons, which needs to be judged based on the specific circumstances.
Regarding the specific application of compliance lenient sentencing, Director Huang pointed out that at present, corporate compliance is applied as a discretionary sentencing situation. Compliance lenient also includes content such as confession and acceptance of guilt. So is corporate compliance a repeated evaluation compared with confession and acceptance of guilt? If not, then where is the boundary of the sentencing of corporate compliance from a broad range? Director Huang believes that: Regarding the boundary of lenient compliance with enterprises, according to the relevant provisions of the "Guiding Opinions on Establishing a Third-Party Supervision and Evaluation Mechanism for Compliance in Enterprises Involved in Case" promulgated by the Supreme People's Procuratorate, the prerequisite for applying enterprise compliance is to plead guilty and accept punishment. First, if we look at the prevention effect, within the same sentencing range, the marginalization of enterprise compliance should be greater than the confession of guilt or surrender, but less than the criminal settlement. Second, the scope of sentencing needs to be determined based on the compliance circumstances of the enterprise, and then the sentencing needs to be determined based on the confession and other circumstances. Third, we must determine the maximum reduction ratio by complying with multiple sentencing circumstances such as pleading guilty and accepting punishment in accordance with the regulations. Director Huang also proposed that in the application of compliance and lenient sentencing, another important issue is the application of fines. According to the "Guiding Opinions on Handling Cases of Admitting Crimes and Acceptance of Punishment", when the procuratorate recommends that the fine be sentenced, the amount should be determined based on the circumstances of the crime and comprehensively consider the ability of the suspect to pay the fine. In the absence of experience in sending sentences to natural persons, it is actually more difficult to grasp the fines for enterprises. Moreover, the fines for crimes committed by units in my country are very complicated and it is difficult to form a quantitative standard.
In the talk session, Professor Fu Yuming from the School of Law of Northwest University of Political Science and Law and Professor Ye Liangfang from the Guanghua School of Law of Zhejiang University.
The first person to talk to is Professor Fu Yuming from the School of Law of Northwest University of Political Science and Law. Professor Fu Yuming said that the reports of the four experts and scholars in this unit are all very exciting. Professor Zhou Zhenjie takes corporate responsibility as the essence and social logic as the starting point to binaryize corporate responsibility and personal responsibility, and put forward a specific criminal law revision plan. The system of this plan is complete, specific and clear, and many of the views in the report are full of innovative consciousness and practical value. Regarding the three speakers below, Professor Fu Yuming also believes that the report has expressed many insights on the system construction and practical issues of criminal compliance, and he also agrees with the relevant views.
Professor Fu Yuming said that compliance issues can be considered from two perspectives: one is the perspective of national governance, and the other is the perspective of corporate operations. Professor Fu Yuming proposed that most of today's speakers think from the perspective of social governance, and in fact, they can also consider examining corporate compliance from the perspective of entrepreneurs, because the starting point and purpose of criminal compliance is to protect the legitimate rights and interests of private entrepreneurs. In this regard, Professor Fu Yuming raised three questions:
The first is the issue of corporate business autonomy in the process of criminal compliance of enterprises.Reports from many scholars in the morning also mentioned this issue, namely, what did the company lose during the compliance process? For example, for corporate legal training issues, many large enterprises usually conduct relevant training in practice, but if small and micro enterprises need to conduct relevant training, they will invest a lot of economic costs, which will undoubtedly increase the burden on small and micro enterprises.
The second is the penalty mode issue for unit crimes. The punishment model of "letting go of enterprises and severely punishing individuals" may have some problems in our country at the moment. The purpose of the initial introduction of corporate compliance system was to protect the rights and interests of entrepreneurs. If the company is "letting go and individuals are severely punished", it may still not play the expected role. Of course, the theoretical community has proposed a "double non-prosecution system", but the "double non-prosecution system" also faces some obstacles, such as the issue of equality in the application of penalties.
The third one is some specific issues in compliance practice. Professor Fu Yuming said that in the relevant practices he has participated in recently, some problems have been found. For example, my country's laws have not been revised yet. If prosecution is not handled during the criminal compliance process, it must still comply with the basic provisions of the current Criminal Law and Criminal Procedure Law. At the same time, compliance practice also faces some specific problems, such as time cost issues, economic cost issues and litigation cost issues in the compliance practice process. Professor Fu Yuming found that companies need to spend huge time and economic costs on related issues, which sometimes exceeds the cost of directly being sentenced to prison without complying with the company. Therefore, criminal compliance should be comprehensively considered in the design of systems, and specific measures should not go against the preset goals.
The second person to talk to is Professor Ye Liangfang from Guanghua Law School of Zhejiang University. Regarding Professor Zhou Zhenjie's report, Professor Ye believes that the report has four characteristics: First, it has a high position. The compliance system of enterprises involved in the case is still in the pilot process, but the reporter has seen the question of how to respond at the criminal legislation level and has put forward specific plans. The second is the theory. The reporter proposed that the essence of unit responsibility is a proposition of social responsibility, and uses it to develop the logical starting point of institutional construction, reflecting his profound philosophical and sociological skills. Third, new views. The reporter proposed to extend the criminal liability of the unit to all charges and apply the prohibition of employment to the unit. These views are very sharp and refreshing. Fourth, strong guidance. The reporter proposed that the failure to carry out effective compliance governance and the failure to properly fulfill compliance obligations shall be used as the basis for judgment of unit intentional crimes and unit crime negligence, so as to reduce the burden of proof of the accusation agency, modify the punishment principle for unit crimes, and actively carry out compliance governance as statutory sentencing circumstances, and add unit recidivism and unit probation systems. These views are of great reference value for judicial practice.
Regarding the report of Dr. Pan Lu, Professor Ye believes that the report provides a very comprehensive analysis of the value of unit crime governance and the path and method of corporate compliance and non-prosecution. It has a broad vision, detailed information, and a combination of case management, and many novel views. However, there are two points that need to be improved in terms of paper writing: First, there are a little too many research topics, which to a certain extent affects the analysis depth of the paper. For example, three issues were discussed regarding the path of corporate compliance non-prosecution. It feels that each topic is mentioned slightly but not too late to develop. Second, the cases cited are mainly extraterritorial cases. If there are cases in my country with similar issues, there is no need to cite cases from other countries.
Regarding Associate Professor Li Guanyu’s report, Professor Ye believes that there are three characteristics: First, the problem is difficult. Compared with the issue of conviction, sentencing issues are more complex and theoretical breakthroughs can be achieved. The report takes the judgment of sentencing responsibility in the enterprise compliance incentive plan as the research object. It is not only studying sentencing issues and sentencing responsibility issues, but the sentencing responsibility issues of the enterprise, which is extremely challenging. The second is to discuss high focus.The report always revolves around the sentencing responsibility issue of corporate compliance incentive plans, starting from two cases, pointing out that the "legal interest recovery theory" cannot be used as a legitimate basis for corporate compliance leniency, but should adopt a phased judgment by a holistic analysis method, and proposes that the legitimate basis for corporate compliance leniency is not responsibility prevention, and believes that the judgment criteria should be formal behavioral responsibility, and finally demonstrate its specific use in three types of cases. Third, the conclusions can be replicated. The criteria and methods for judging sentencing liability proposed in the report are replicable, highly operational, and are also convenient for judicial practice to apply.
Regarding Director Huang Meihua's report, Professor Ye believes that its biggest feature is its practicality. The report is straight to the point, directly touching the topic, and focusing on discussing three practical issues. The first is the basis for the lenient sentencing recommendations for compliance, the second is the scope and conditions for the lenient sentencing recommendations for compliance, and the third is the method of lenient sentencing recommendations for compliance, including the principle of enterprise priority and the calculation of the amount of enterprise compliance sentences. Especially in the calculation of fines, the report quotes a large number of data examples to prove, with clear problem awareness and functional orientation, and the countermeasures and solutions are very practical.
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Unit 3 Topic report: Criminal Compliance Ontology and Its Application
This unit is themed "Criminal Compliance Ontology and Its Application". It is taught by Professor Zhu Xiaozhe , and Professor , Shanghai University of Finance and Economics Law School Peng Wenhua , School of Criminal Justice, China University of Political Science and Law School Geng Jianing Associate Professor, Sichuan Normal University School of Law Chen Shan Professor, Doctoral Student of the School of Law of Fudan University Zhang Yedong , East China University of Political Science and Law Zhang Yong Professor 1 delivered a speech at the conference. East China Normal University School of Law Zhou Wanli Associate Professor, Researcher of the Institute of Law of Shanghai Academy of Social Sciences, Deputy Procurator General of the People's Procuratorate of Yangpu District, Shanghai Tu Longke serves as the person to discuss.
Geng Jianing Associate Professor discusses what is an effective compliance system, that is, the appropriateness standard of the enterprise organization model, based on the legislative and judicial practice in Italy in the past twenty years. Associate Professor Geng Jianing introduced that in Italian legislation, the corporate organization model plays a diverse role with the occurrence stage of crime as the node, which corresponds to different legal effects. The appropriate organizational model of an enterprise before the crime can exclude corporate responsibilities. After the crime and the appropriate organizational model of an enterprise before the first instance trial can affect the discretion of the punishment of the enterprise, and after the first instance judgment, it will affect the execution of the punishment of the enterprise. If the company adopts an appropriate organizational model in advance, the exclusion of the responsibilities of the company involved in the case will usually not enter the trial stage, and most of the companies involved in the case will be ruled not to prosecute during the pre-investment stage. In practice, the evaluation given by the Italian judicial authorities is usually "inappropriate" about the organizational model of pre-crime enterprises. Therefore, enterprises (especially small and medium-sized enterprises) are often more willing to invoke relevant clauses of the post-crime organizational model in order to strive for lenient punishment. As for the ontological issue of corporate compliance, Italian law stipulates that an effective compliance system needs to have two elements: one is the qualification of the organizational model in preventing crimes, and the other is the effective implementation of the qualified organizational model. Regarding "preventive eligibility", the only criterion clearly put forward by the Italian Supreme Court's jurisprudence is "specificity". The question that arises is: To what extent should the organizational model suitability requirements be refined? It is generally believed that although legislation and precedents can extract the necessary content and design methods of the organizational model, a fully typed organizational model is actually impossible to exist.Regarding "effective implementation", that is, the organizational model actually operates in a pre-designed way, the question exists: Should enterprises that lack paper regulations but are always affected by compliance practices in actual operations, the appropriateness of their organizational model should be affirmed? In the Impregilo case, both courts affirmed the appropriateness of the corporate organizational model, but the Supreme Court denied the appropriateness of its organizational model. The latter implies the prior position of "the crime of senior officials itself indicates that the prevention measures are not qualified or have not been effectively implemented" from a post-event perspective, which is equivalent to being severely criticized by academics because senior officials implicated the enterprise. There are different views on the proof of the appropriateness of corporate organizational models. It is generally believed that the allocation of burden of proof for crimes committed by senior personnel and general staff in crimes should be unified. Article 6, paragraph 1 of Italy's Act No. 231 of 2001, "When a crime is committed by a senior officer, the organization is not responsible if the following circumstances are proved" is only to ensure that the investigated company fully exercises its right of defense, and reminds the company to make a claim that is beneficial to its own party, rather than transferring the burden of proof of the appropriateness of the organizational model to the company.
Chen Shan Professor 1 discusses the theme of the fit between criminal liability for corporate negligence crimes and compliance system. The first aspect is whether compliance operations can affect criminal liability, and the second aspect is under what circumstances can compliance negate liability. Professor Chen Shan pointed out that the criminal liability burden model for crimes in my country belongs to a combination of the personal fiction model and the organization fiction model. It uses the behavior of natural persons in the enterprise as a reference element to judge whether the unit has a crime and the unit itself is held criminally responsible. In this mode, it is conceivable that compliance operations as factual factors act on examining whether the company has behavioral preparations that are sufficient to prevent a certain harmful result. This will distinguish whether a company is guilty and achieve a separation between corporate behavior and personal behavior. When the facts of the supervision and management obligations of the enterprise in a negligent crime have been fulfilled by the compliance plan, even if the so-called criminal result occurs, the result should not be attributed to the enterprise, especially in situations where the company's supervision and management responsibilities and the employees' business negligence behaviors are in conflict. As a result of the occurrence of harmful results, when there is indeed evidence to prove that there is no fault in the occurrence of harmful results at the enterprise level, the enterprise does not need to bear responsibility. Regarding the circumstances under which the enterprise can deny responsibility, Professor Chen believes that the compliance operation of the enterprise's behavior has reached the standard duty of care that meets the standard, can be regarded as meeting the obligation of care required by the criminal law. From the perspective of filling standards, the boundaries of attention obligations and the content of standard behaviors usually include three levels: national laws, specific industry habits and rational people's prudence. Together, these norms constitute the specific pattern of standardized behavior of enterprises. If the enterprise implements and effectively operates these standardized compliance operations, it can be used as a reason to defend the existence of negligent crimes.
Zhang Yedong Dr. 1 report is based on the legal implementation path of corporate environmental compliance under the co-governance pattern. Dr. Zhang pointed out that the basis of corporate environmental compliance should be a new double-layer nested structure of environmental legal structure, which can not only reflect the environmental rights and environmental obligations that enterprises should enjoy in the production and operation process, but also reflect the government's environmental power and environmental responsibilities of enterprises in the process of government supervision of enterprises. Enterprise obligations are nested in the enterprise responsibility system. The path to realizing corporate environmental compliance is fundamentally divided into rights-based environmental compliance paths and obligation-based environmental compliance paths. The rights-based environmental compliance path corresponds to the internal governance path that an enterprise enjoys its own environmental rights. The obligation-based environmental compliance corresponds to the external supervision and supervision paths including the path of enterprises responding to government supervision and the path of enterprises responding to environmental litigation. Finally, a diversified environmental governance system with government supervision, corporate self-discipline, and public participation is formed, providing theoretical guidance and specific implementation plans for corporate environmental compliance.
Zhang Yong Professor systematically explores the filtering model of data security criminal compliance. Professor Zhang pointed out that criminal compliance with data security is to ensure data security, and compliance governance activities carried out by enterprises, government departments, and judicial organs within and outside the enterprise. The so-called "filtering crime" means "filtering crime". When a certain act is considered a crime, it must first be evaluated as a specific crime by criminal legislation; on this basis, judicial authorities need to be convicted and sentencing according to the Criminal Law; through different litigation stages stipulated in the Criminal Procedure Law, the act is finally considered guilty or innocent. For statutory criminals, the pre-law and criminal law have a close internal correlation, and therefore have an important "filtering crime" function. For corporate criminal compliance, pre-administrative regulations are more specific and detailed regulations than criminal regulations. Criminal compliance for data security should be centered on data security, with criminal law norms as the bottom line standard, administrative law norms as the general standard, and industry norms as the reference standard. Enterprise data compliance needs to be connected to the criminal justice process, and enterprise data compliance needs to be integrated into the judicial process from criminal filing to investigation to prosecution; at the same time, it needs to be coordinated with administrative supervision, and it is possible to consider introducing administrative settlement mechanisms into the criminal compliance field of data security. Criminal compliance for data security requires the establishment of a system with enterprises as the main body, multi-party participation, and internal and external cooperation governance, and form a filtering mechanism based on the identification of legal interests in data security, classification and hierarchy as the level, legal obligations as the content, and criminal connection; establish the concept of criminal integration, and form a filtering system for data security and criminal compliance above, within and outside the criminal law.
Entered the talk session under the auspices of Professor Peng Wenhua .
The first person to talk to is a researcher at the Institute of Law of Shanghai Academy of Social Sciences Tulongke . Tu Longke believes that in the interpretation theory, two issues must be solved when discussing corporate compliance and unit crimes. One is to define and distinguish between natural person responsibilities and corporate responsibilities through compliance plans; the other is how the compliance plan affects the criminal liability of the company itself. The theory of organizational responsibility divides the responsibility of an enterprise and the responsibility of a natural person, which can better explain the separation between unit crimes (or organizational crimes) and natural person crimes due to the compliance plan, but it does not mean that due to the implementation of the compliance plan, the criminal acts of an organization themselves do not constitute a crime. A company's compliance plan does not mean that the behavior implemented by the company is not a criminal act. The legitimacy of not punishing or prosecuting a company with a compliance plan depends on the reduction of the possibility of criticism from the company, rather than the reduction of the necessity of prevention. The legitimacy of non-prosecution or non-punishment of post-compliance lies in the reduction of the need to prevent corporate crimes. The basis for legitimization of post-event compliance and pre-event compliance is not the same path. The legitimacy of non-punishment of a business is based on criminal policy, not the inevitable conclusion drawn from explanation. Therefore, legislation is necessary.
The second person to talk to is the head of the "Daxia Compliance" project of East China Normal University and the World Bank Zhou Wanli Associate Professor. Zhou Wanli believes that Dr. Zhang's paper is relatively comprehensive, and regards the Civil Code, administrative supervision (so-called "administrative compliance"), criminal compliance, public interest litigation, etc. as the external driving force for enterprises to carry out environmental compliance. At the same time, it is also recommended that Dr. Zhang use compliance obligations instead of legal obligations to express the main views of the paper more clearly. Because this article revolves around the legal obligations of enterprises in terms of the environment and has certain limitations. However, legal obligations are a core component of compliance obligations. In the study of ecological and environmental protection compliance, compliance limited to legal obligations is incomplete and may also lead to the results of invalid compliance. In the fields of environmental crime and data security, both involve pre-emptive issues, namely administrative illegality. There is a close relationship between administrative illegality and the provisions on environmental crimes and data crimes in the criminal law.In our country, administrative law and criminal law are two relatively independent departments, and the goals pursued by administrative law and criminal law are also different. What needs to be considered is how to introduce the judgment of administrative illegality into the judgment of constituent elements of criminal law. In addition, an important issue in environmental compliance and data protection compliance is organizational governance. For example, in the construction of data security compliance, data protection officers play an important role and have specific provisions in the EU General Data Protection Regulation (GDPR). Similarly, there is a similar role as an environmental protection officer in environmental protection compliance. In terms of organizational governance, compared with other traditional fields such as anti-corruption compliance or anti-monopoly compliance, in recent years, the importance of environmental compliance and data protection compliance in legal policies and legal practices has been continuously strengthened. This link focuses on ecological and environmental protection compliance and data protection compliance, showing the organizer's careful arrangements.
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Unit 4 Special seminar: Exploration of the system of non-prosecution for compliance
This special topic is themed "Exploration of the system of non-prosecution for compliance". It is hosted by Secretary of the Party Leadership Group and Procurator General of the People's Procuratorate of Jiading District, Shanghai, and Ge Jianjun and Researcher of the Law Institute of Shanghai Academy of Social Sciences Chen Qing'an , Lecturer of the School of Law of Guangzhou University Wen Zhiqiang , Lecturer of the School of Law of Hebei University of Economics and Trade Zhang Yongjin , Zhangjiagang Municipal People's Procuratorate Research Office, Zheng Li , and Anhui Province Huainan Municipal People's Procuratorate Research Office, Jin Liangcheng
At the beginning of the topic, Ge Jianjun Prosecutor General pointed out that the criminal compliance system is a new proposition under the background of modernization of social governance system and governance capabilities. The compliance non-prosecution system to be discussed in this unit is the core issue of the theoretical and practical circles on the research on corporate compliance system. How to make the decision to make the non-prosecution decision more scientific and legitimate, and more reasonable and well-founded is the focus of the research on the compliance non-prosecution system. Specifically, for example, what localized designs are reflected in the operation of enterprise compliance systems? Isn’t it essentially a conditional non-prosecution for corporate compliance? For example, what is the supervision and evaluation process for a third-party organization? What is the focus of supervision? For example, during the operation of the system, how can it be effectively connected with the existing system of confession and acceptance of punishment, relative non-prosecution system, and prosecutorial recommendation system? Or do enterprises and entrepreneurs suspected of committing crimes need to be considered separately when applying the enterprise compliance non-prosecution system? These issues are also the focus of the next report.
The first report guest in this unit is Wen Zhiqiang from the School of Law of Guangzhou University. The title of his report is "The legitimacy basis and model selection of the enterprise compliance non-prosecution system." First of all, Mr. Wen Zhiqiang believes that in the development of my country's compliance non-prosecution system, it has many localized and regional characteristics, such as the integration of criminal policies that combine leniency and severity. An important question arises from this is what is the enterprise compliance non-prosecution? What is its basis for legitimacy and legality? Specifically, compared with individual crimes, why can enterprises or entrepreneurs easily receive unprosecuted treatment? Has it shaken the understanding and application of some basic principles of criminal law? Subsequently, Teacher Wen Zhiqiang responded to the legitimate question of compliance and non-prosecution from both legal and reasonable perspectives.At the legality level, there is no restriction on the subject identity of the application of the lenient system for confession and acceptance of punishment. Therefore, enterprises can also apply the non-prosecution system when they meet the conditions. The social harm in the case involving enterprises is generally low. The application of the non-prosecution system to enterprises does not mean that the enterprise is not punished. In many cases, non-criminal punishment measures are adopted; at the reasonable level, the application of the non-prosecution system is also in line with the purpose of punishment, which means a transformation from pure retribution to positive general prevention perspective, and is also in line with the current criminal judicial policy of "less arrests, cautious prosecution and detention", and reflects the value function and litigation economic principle of strengthening the diversion of pre-trial judicial procedures in criminal cases. Finally, on the premise of establishing the legitimacy of compliance non-prosecution, Mr. Wen Zhiqiang demonstrated that the "conditional non-prosecution model" is more in line with my country's judicial practice and international practices, but there are difficulties such as conflicts with the current legal system and the eligibility of compliance regulators. Therefore, he proposed corresponding improvement paths for the "conditional non-prosecution model" from the legislative level and the extraterritorial experience reference level respectively.
The second speaker of this unit is Zhang Yongjin from the School of Law of Hebei University of Economics and Trade. Teacher Zhang's report mainly studies the non-prosecution system for corporate crimes based on the investigation of 3,318 non-prosecution documents on China Procuratorial Network. Teacher Zhang Yongjin pointed out that corporate crime governance is an important part of the modernization of the national governance system and governance capabilities. The non-prosecution system is an important procedural support for procuratorates to participate in corporate crime governance. Compliance with corporate non-prosecution is a specific application of the existing non-prosecution system. The question is what procedures should be applied? First, Mr. Zhang Yongjin conducted a data analysis based on region, time and application of the non-prosecution documents of China Procuratorate Network from 2014 to 2021, and concluded that the non-prosecution of corporate crimes is positively correlated with the degree of regional economic activity, the absolute number of non-prosecution of corporate crimes shows a significant increase trend, and the types of non-prosecution of corporate crimes are mainly based on relative non-prosecution. Subsequently, based on the data analysis of the current practice of not prosecuting corporate crimes, Mr. Zhang Yongjin further analyzed that there are six shortcomings in procedural law: the shortage of applicable conditions for not prosecuting corporate crimes; obstacles to incentive mechanisms; weak defense and protection; gaps in the procedures for admitting guilt and accepting punishment for enterprises involved in crimes; limited participation of mass people and poor external connection mechanisms. Finally, in terms of specific procedures, Mr. Zhang Yongjin put forward corresponding improvement suggestions on the above six shortcomings: improve the litigation procedures for not prosecuting corporate crimes; optimize the incentive mechanism for not prosecuting corporate crimes; improve the effective defense mechanism for not prosecuting corporate crimes; improve the procedural connection mechanism between not prosecuting corporate crimes and lenient punishment; improve the mass participation mechanism for not prosecuting corporate crimes and improve the supporting connection mechanism for not prosecuting corporate crimes to achieve the rule of law in the system of not prosecuting corporate crimes.
The third reporter of this unit is Zheng Li , the deputy director of the Research Office of Zhangjiagang Municipal People's Procuratorate. Based on the practical exploration of compliance and non-prosecution in Zhangjiagang City, she introduced the local practice of compliance and non-prosecution, the existing problems and related ideas. First, Deputy Director Zheng Li introduced the goal of the Zhangjiagang Municipal People's Procuratorate in its work related to compliance and non-prosecution, that is, to serve and ensure the high-quality development of the private economy.Among the 60,000 private enterprises in Zhangjiagang City, small and medium-sized enterprises are mainly small and medium-sized enterprises. Therefore, in practice, the Zhangjiagang Municipal People's Procuratorate has established a series of characteristic review mechanisms based on this feature, including five aspects, namely: reviewing the compliance application conditions and setting up a pre-procedure for investigation and evaluation; using the concept of diversion of traditional and simple styles in the selection of scale, and determining the appropriate supervision and inspection model based on the enterprise scale, risks, compliance capabilities and supervision and inspection workload; reviewing the scientific nature of third-party organizational structures, randomness and professionalism of members; exploring the application of the compliance leniency system, emphasizing the classification and application of the model of relative non-prosecution, lenient punishment, and dual processing of different cases. Secondly, Deputy Director Zheng Li raised some problems in the pilot practice of enterprise compliance reform based on the practical situation of Zhangjiagang City. The first question is the necessity of compliance and the legitimacy of feasibility assessments. Specifically, for the recognition standards that meet the basic conditions for launching the compliance system, can only large and medium-sized enterprises that pay high taxes, have wide employment, and have a large social contribution to the compliance system? The second problem is the subsequent difficulty in compliance inspection of small and micro enterprises. The governance structure of small and micro enterprises generally has inherent defects, and it is difficult to establish an effective compliance management system. How procuratorates strengthen supervision and prevent problems such as paper compliance, false compliance and compliance corruption have also become the key to the exploration of compliance systems and compliance. The third problem is the problem of limited incentive effect for compliance and leniency. It is mainly manifested in the limited application of compliance and non-prosecution under the existing legal framework, and the limited scope of leniency for pleading guilty and accepting punishment, which affects the effectiveness of compliance. Finally, from the actual situation, Deputy Director Zheng Li put forward several ideas: improve the compliance system with Chinese characteristics with procuratorial supervision as the core, quantify the necessity and feasibility assessment standards; explore the establishment of a "compliance mutual recognition" mechanism to achieve effective connections in all links; use big data and other means to dynamically supervise the completion progress of enterprise compliance plans and the operation of the compliance system, and establish a legal supervision model for compliance supervision and inspection; strengthen the applicable conditions, scope, standards and procedures for compliance lenient compliance, form grassroots exploration and practice, and provide materials for legislation.
The last reporter of this unit is the head of the Research Office of Huainan People's Procuratorate Jin Liangcheng Prosecutor, who exchanged and reported on the topic of "Exploration and Practice of Compliance Reform of Enterprises involved in Huainan". First, Prosecutor Jin Liangcheng introduced the Huainan Municipal People's Procuratorate, in the context of the Anhui Provincial Procuratorate's deployment and launching the compliance reform of enterprises involved in the province, took the lead in exploring and carrying out compliance work for enterprises involved in the case, and took the lead in establishing a compliance third-party regulatory committee at the municipal and district (county) levels to explore the handling of third-party mechanism model compliance cases, procuratorial recommendations and scale cases and other related practices. It also further introduced specific practical practices: the first is to unify thoughts, demonstrate political awareness, and deeply understand the great significance of compliance reform; then actively perform duties and strengthen compliance quality and efficiency. Explore the application of two models: "third-party mechanism paradigm-to-scale" and "simplified prosecutorial recommendations to scale" to enable judicial policies such as "no arrest" that cannot be arrested, no prosecuted, and no sentenced to actual punishment that cannot be sentenced to actual punishment; efficient linkage to build consensus on reform. At the beginning of the reform, we have continuously strengthened the criminal and administrative connection mechanism, and took the lead in establishing third-party supervision committees at the provincial (county) level and third-party compliance supervision committees at the municipal level; conducting research and advice to ensure steady and long-term progress. A complete set of mechanisms for compliance reform in Huainan was established and the "Anhui Province Compliance Reform Case Handling Process (Trial)" was drafted. Subsequently, Prosecutor Jin Liangcheng also mentioned the problems in practice. First, the procuratorial system itself is not unified enough, and there are problems such as "not wanting to do it", "dare not doing it", and "not not knowing how to do it". Local party committees and governments have problems such as insufficient attention, insufficient cooperation, and insufficient guarantees for compliance reform, as well as lack of clear communication, cooperation rules, procedures and necessary responsibility constraint mechanisms in terms of departmental cooperation and linkage. Second, the biggest obstacle in the compliance case handling process is the issue of legal basis.How to speed up the legislative process within the existing compliance reform framework to include it in the scope of compliance non-prosecution investigation, and solve problems such as insufficient compliance incentives and too short inspection period; thirdly, the problem also exists that the destiny value of the third-party supervision and evaluation mechanism is not fully demonstrated: how to prevent the abuse of the power of the prosecutor in charge and ensure the fairness and effectiveness of the exercise of the prosecutor's power; how to prevent third-party professionals from being bound by professional interests or other interests or implicated in ensuring the independence, professionalism and openness of professional personnel selection. Finally, Prosecutor Jin Liangcheng put forward the following views based on the above issues: First, we must further improve our ideological understanding; second, grassroots must actively explore the reform model of compliance non-prosecution to lay a practical foundation for promoting compliance legislation; third, strengthen compliance supervision, prevent the risks and hidden dangers brought by arbitrary compliance assessment, and prevent the abuse of judicial discretion during compliance inspection and assessment, so as to continuously improve the transparency and credibility of compliance inspection; fourth, fully activate the endogenous driving force of "government and procuratorial linkage" and strengthen the connection between administrative law enforcement and criminal justice.
The discussion session of this unit was chaired by researcher Chen Qing'an at the Institute of Law of the Shanghai Academy of Social Sciences .
The first person to talk to is an associate professor at the School of Law of East China Normal University Fan Chuanming . He mainly commented on the reports of Teachers Wen Zhiqiang and Teacher Zhang Yongjin and shared his learning experiences. Associate Professor Fan Chuanming believes that the content of the two teachers’ papers is very detailed, but there are differences in writing ideas. Teacher Wen mainly analyzes from the perspective of the argumentation model of compliance and non-prosecution legitimacy; while Teacher Zhang mainly adopts empirical research methods, uses the corresponding judgment documents as the object of analysis, and conducts statistical data analysis on a large number of documents. The two teachers' essay writing ideas represent two different methods of legal research, but their essays can echo each other in many conclusions. Subsequently, Associate Professor Fan Chuanming expressed his own experience and opinions on the issue of compliance and non-prosecution. First of all, the relationship between the non-prosecution of corporate compliance and the existing non-prosecution system. In theory, there are two views on whether corporate compliance non-prosecution is an independent litigation system or just a judicial policy. In this regard, he believes that in future legislation, there is no need to create corporate compliance non-prosecution as a new system. Enterprise compliance can be included in the operation of the existing system by fine-tuning or expanding the existing non-prosecution system. The problems such as insufficient institutional incentives brought about by it can be solved by expanding the application of relative non-prosecution, that is, the application of relative non-prosecution is not limited to the circumstances clearly stipulated in the Criminal Code. Secondly, there may be differences in the application of the non-prosecution system for large and medium-sized enterprises and small and micro enterprises. By drawing on the experience of relevant countries outside the region, the scale of the enterprise and its industry can be used as important considerations. The third aspect is about how to protect the right of participants in the relevant litigation in procedurally, especially how to protect the victim’s demands in procedurally. Finally, there is the effective connection between the non-prosecution of corporate compliance and the lenient punishment system of pleading guilty and accepting punishment. This is a relatively meticulous work that needs to be carried out at the institutional operation level.
The second person to talk to is the deputy director of the Third Procuratorate Department of the Second Branch of the Shanghai Municipal People's Procuratorate Wu Juping . Director Wu mainly shared and thoughts about the experiences of Deputy Director Zheng Li and Jin Liangcheng, and supplemented the thoughts and confusions that existed on the front line of judicial practice. First of all, Deputy Director Wu Juping affirmed the wonderful speeches of the two practical experts. They believe that their exploration is very pragmatic and standardized, including the study, implementation and implementation of the Supreme People's Procuratorate's documents, as well as the personalized thinking and exploration generated based on practice. For example, the big data dynamic supervision model of the Zhangjiagang Municipal People's Procuratorate and the Huainan Municipal People's Procuratorate took the initiative and self-pressure when it was not listed as a pilot unit before, and has achieved remarkable results in the number and effectiveness of pilot cases and has accumulated relevant valuable experience.Since then, Deputy Director Wu Juping has added two ideas on compliance issues. First of all, it is necessary to set up a statutory mitigation case in the criminal policy level, so that in practice, the sentencing incentives for enterprises and those involved in the case can be truly realized. So far, there are no practical cases of second-instance compliance. If corporate compliance is carried out during the second-instance process, a statutory reduction of circumstances is needed to achieve sentencing incentives. Secondly, regarding the dispute over whether to let the unit go or the individual go, Deputy Director Wu Juping believes that the procuratorate’s pilot project on enterprise compliance reform is mainly to increase equal protection of the private economy, implement judicial policies that do not arrest or prosecute and ease sentencing recommendations, and to prevent such illegal crimes from happening in the future, achieve six stability and six guarantees, create a good legal business environment, and promote high-quality economic development. In essence, we must establish a moderately relaxed and fair and law-based business environment. Therefore, when complying with regulations, within the current legal framework, we must let go of both enterprises and individuals in these enterprises to moderately let go of them.
In addition, Deputy Director Wu Juping also proposed in the talks that as Prosecutor Jin Liangcheng said, all units should take corporate compliance as the top leader project. The current pilot work of enterprise compliance is not the business of the procuratorate alone, but the common cause of the legal community. Whether it is a discretionary non-prosecution or a second-instance change, it requires the support and cooperation of the investigative and judicial authorities, and the active participation of defense lawyers, third-party regulatory units and experts. Therefore, the in-depth development of enterprise compliance pilot work requires the same efforts and joint promotion from the legal community and all sectors of society.
At the end of the talks, Chen Qing'an Researcher summarized the focus and significance of the reports of each reporter in this unit, and provided theoretical and practical research experience for the subsequent revision of the Criminal Procedure Law and even the revision of the Criminal Law from the perspective of legislative theory. Researcher Chen Qing'an also shared his two views. First, it is about the specific method used to not prosecute enterprises in compliance with the law. He believes that whether it is conditional non-prosecution or relative non-prosecution plus prosecution recommendations is not enough to include all the content of enterprise compliance with the law. Even if the existing non-prosecution system is fine-tuned, it will face the problem of how to distinguish the boundaries between the two. Therefore, Researcher Chen Qing'an's view is that non-prosecution should belong to a system that is independently developed under the strong promotion of the Supreme People's Procuratorate. Secondly, there is the issue of the scope of application or the object of application of compliance non-prosecution. Researcher Chen Qing'an believes that both natural persons and units should be applied equally, so there is no problem in expanding the scope of application of enterprise compliance systems to small and micro enterprises.
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Unit 5 Roundtable Salon: Lawyers in compliance without prosecution participate in
This unit is themed "Lawyers in compliance without prosecution", and is hosted by Professor of the Law School of Anhui Normal University and Executive Dean of the Wanjiang Enterprise Compliance Research Institute Xi Wei , and is director of the Criminal Department of Beijing Yingke (Shanghai) Law Firm Kang Ye lawyer, senior partner of Shanghai Bohe Hanshang Law Firm Xie Xiangying lawyer, senior partner of Beijing Dacheng (Shanghai) Law Firm Ma Lang lawyer, senior partner of Shanghai Hansheng Law Firm Pei Changli lawyer served as spokesperson.
Director Xi First, he expressed his views on the theme of this unit, believing that the participation of lawyers in compliance without prosecution is mainly reflected in two aspects: one is to be a compliance consultant of the enterprise and participate in the construction of corporate compliance, and the other is to be a member of a third-party organization and participate in the evaluation of corporate compliance.Regarding these two aspects, Director Xi raised a series of questions, such as: As a consultant for corporate compliance, how can a lawyer help the company involved in the case initiate a compliance rectification procedure; how to apply for the initiation of compliance rectification procedures to help the company involved in the case; how to implement the compliance rectification plan; how to position his role as a member of a third-party organization; how to coordinate conflicts of interest; how to prevent occupational risks, etc.
The first spokesperson is senior partner of Shanghai Bohe Hanshang Law Firm Xie Xiangying lawyer.
Lawyer Xie believes that there are three main roles for lawyers in the company involved. The first is to be a criminal defense lawyer, the second is to be a compliance and rectification lawyer, and the third is to be a third-party supervision and evaluation expert. Lawyers in different roles have different responsibilities.
Lawyer Xie focuses on how to help companies initiate a process of complying with regulations and not prosecution. According to the two documents of the "Measures for Compliance Construction, Evaluation and Review of Enterprises Involved Case (Trial)" jointly issued by the All-China Federation of Industry and Commerce and nine other departments and the Supreme People's Procuratorate's "Guiding Opinions on Establishing a Third-Party Supervision and Evaluation Mechanism for Compliance in Enterprises Involved Case (Trial)", there are two ways for prosecutors to initiate compliance with the enterprise. The first is for prosecutors to take the initiative to review, and the second is for the enterprise's application. As a criminal defense lawyer, first, you must determine which companies can apply. It needs to be judged according to the conditions in the review method, and in addition, some special conditions formulated by procuratorates in different regions need to be considered. Second, we must determine which crimes can be applied. The review measures stipulate that it is limited to duty crimes and economic crimes can be applied. However, Lawyer Xie believes that it is not limited to the above two crimes. As long as it is a crime related to production and operation, the provisions of compliance and non-prosecution can be applied. Third, regarding the time period for lawyers to propose the company involved in the case to the procuratorate, Lawyer Xie believes that the earlier the better.
Finally, Lawyer Xie believes that we can start from four perspectives to convince the procuratorate to start the program. The first is the type of enterprise and the strength of the enterprise; the second is the willingness to make compliance rectification; the third is the benefits that can be brought to enterprises, society, and procuratorial institutions after compliance rectification; the fourth is to actively provide cases for the procuratorial organs to show the light.
The second spokesperson is a lawyer at Beijing Dacheng (Shanghai) Law Firm Ma Lang . Lawyer Ma expressed his opinions on the formulation and implementation of the compliance plan.
Lawyer Ma pointed out from the perspective of his own case handling experience that the implementation of the compliance plan is not only a concern for the procuratorate, but also an issue that cannot give quantitative standards. How to ensure that a beautiful plan can be implemented has always been the concern of the procuratorate. Lawyer Ma shared his experience on how the procuratorate, third-party regulatory agencies and participating lawyers judge its feasibility after the compliance program is completed.
Lawyer Ma Lang pointed out that the compliance plan of the companies involved in the case currently has two limitations. One is the surface limitation. The compliance plan is only compliance for special matters. The other is that time is limited, and the compliance plan must be completed within a specific time. This determines that a compliance report is just a short-term plan and is difficult to implement. Moreover, even if it is implemented, it will be difficult to see the effect in the short term and it will not be possible to give clear evaluation criteria. Lawyer Ma believes that within three to six months given by the law, lawyers should let third-party regulators and procuratorates see as feasible as possible that the compliance plan is implemented. To enhance the feasibility of the report, first of all, people familiar with all aspects of the enterprise's business should participate in the formulation of the report; secondly, we must effectively break the original power operation model; finally, the independence of the compliance department should be ensured through corresponding technical support, financial support and personnel guarantees.
The third spokesperson is a senior partner of Shanghai Hansheng Law Firm Pei Changli lawyer. Lawyer Pei started from the functions of compliance reports and the responsibilities of reporting, focusing on the effectiveness of compliance reports.
Lawyer Pei believes that whether the compliance report is valid and whether it will be adopted by the procuratorate depends on its function. The compliance report should consist of two parts: one is the rectification report that the enterprise itself needs to submit, and the other is the enterprise compliance inspection report issued by a third-party supervision organization. The procuratorate focuses on the compliance inspection report issued by a third-party supervision organization. Lawyer Pei believes that the compliance inspection report should be the sentencing situation, not the only reason for not prosecution in compliance, otherwise the requirements for the compliance inspection report will be too high. Lawyer Pei further pointed out that compliance without prosecution can only apply to unit crimes, and a very cautious attitude should be taken on whether individual crimes can be applied.
Lawyer Pei also called for clear provisions on the legal status of lawyers and third-party organizations in compliance non-prosecution in the subsequent legislative amendments, as well as further provisions on the specific process details of the compliance non-prosecution. For example, what should be done when the compliance report fails? Article 34 of the "Implementation Rules of the All-China Federation of Industry and Commerce" stipulates that if a member of a third-party organization has different opinions on the compliance report, his or her different opinions should be stated in the report. Finally, it is worth in-depth discussion on how to prevent and relieve risks from compliance organizations, especially lawyers, in compliance work. For example, the reporting obligations of third-party supervision organizations when they discover that the company has other criminal acts exceed the necessary meaning of the compliance non-prosecution system and should be removed; otherwise, members of third-party supervision organizations are equivalent to acting as "whistleblower", which poses legal risks.
The fourth spokesperson is the director of the Criminal Department of Yingke (Shanghai) Law Firm Kang Ye lawyer.
Lawyer Kang mainly discusses the participation of lawyers in compliance with environmental and resource crime cases, and develops it from the following three aspects.
The first aspect is that environmental resource crime enterprises have a lot of room for application for compliance and non-prosecution. First of all, the legal interests view of environmental pollution crime has developed from a simple anthropocentricism to anthropocentric ecological legal interests view. Under the guidance of this concept of ecological restoration, compliance and non-prosecution have become an option. Secondly, all charges of environmental and resource crimes can be considered as unit crimes, which is one of the types of cases where the compliance non-prosecution system can be widely applied. Again, most of the enterprises involved are manufacturing-type entities, and they have a strong desire to strive for compliance and not prosecute, and their cooperation is very high. Finally, the compliance rectification of enterprises involved in environmental and resource crimes is subject to conditions and has the guarantee of "civil defense" and "technical defense".
The second aspect is the analysis of environmental and resource crimes that are not suitable for compliance and non-prosecution. Lawyer Kang pointed out that compliance and non-prosecution in environmental resources cases is not applicable to enterprises that fail to correct their mistakes after repeated teaching. It is also not applicable to specific behaviors in specific areas, such as environmental pollution crimes occurring in eleven provinces and municipalities directly under the central government in the Yangtze River Economic Belt. It is also not applicable to enterprises that have not paid compensation during the investigation and review and prosecution stages.
The third aspect is some precautions for lawyers when participating in environmental resource compliance non-prosecution. Lawyer Kang believes that in case of environmental and resource crimes, lawyers must first fully grasp environmental laws and regulations, and secondly, actively report the company's situation to the local government outside the case, confirm the company's status as a market entity to promote the initiation of compliance procedures, and finally, use the unique environmental and ecological damage compensation system to actively conduct damage compensation consultations with the right holder.
Lawyer Kang pointed out that in the process of providing services throughout the process, lawyers must stop losses in advance, strive for the company's head to be detained, submit a feasibility report of compliance and non-prosecution to the procuratorate, and help establish an enterprise compliance system.
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Closing Ceremony
Closing Ceremony
Closing Ceremony was hosted by Professor Bai Langtao , School of Law, East China Normal University.
Deputy Procurator-General of the People's Procuratorate of Hongkou District, Shanghai Cui Xiaoli Summary speech as the representative of the organizer.
Deputy Procurator General Cui Xiaoli pointed out that this forum is a presentation of the cooperation between the two parties in procuratorial and school, and is also a vivid practice of combining theory with practice. It is of great significance to further promote research on criminal compliance and unit crimes, deepen the compliance reform of enterprises involved in the case, improve compliance criminal legislation, and build a compliance legal system with Chinese characteristics. Finally, Deputy Procurator General Cui expressed warm congratulations on the successful holding of the forum on behalf of the Hongkou District Procuratorate and expressed his gratitude to the leaders and experts attending the meeting for their enthusiastic participation.
School of Law of East China Normal University Zhang Wei Associate Professor 11 expressed his outlook on the fifth special criminal law forum to be held next year, and expressed his gratitude to the teachers and friends who have long paid attention to and supported the Law School of Hua Normal University.
This forum ended successfully!
Source : School of Law, East China Normal University, Secret Lawyer Official Account
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