(a) Corporate compliance and corporate risk control
Risk control types of enterprises: operational risk, financial risk and compliance risk.
The first dimension: compliance = corporate governance (compliance governance)
Corporate governance structure (two-dimensional): ownership+management right; Independent third-party supervision department: monitoring right
Case: ZTE, special compliance plan+export control compliance plan, three special compliance departments.
System: The Board of Directors has a compliance management committee (above the general manager)-Chief Compliance Officer (CCO)-CCO leads the compliance department-compliance departments or compliance commissioners of various business departments or branches (small-scale), with a vertical leadership system.
(C) The second dimension: the incentive mechanism of administrative supervision.
Principle: 1, building compliance meets the requirements, and an administrative settlement (settlement agreement) is reached;
2. Reach a settlement, pay the settlement money and rebuild the compliance plan, with an observation period;
3, lenient punishment, reduce fines.
China: Avoid entering criminal proceedings.
The third level: criminal compliance (incentive mechanism, leniency)
Four kinds of incentive mechanism:
1. If it meets the requirements and the crime is minor, the procuratorate will be exempted from prosecution (compliance will not lead to prosecution).
2, compliance as the enterprise's innocence defense (compliance innocence defense)
3. The compliance mechanism is lighters and lighters.
4. Reach a settlement agreement: suspend the prosecution of DPA (set a conditional probation period) and not prosecute NPA.
(v) The fourth aspect: compliance as a condition for international organizations to lift sanctions (anti-sanctions compliance).
Four risks of international compliance: money laundering, commercial bribery, export control and data security protection.
Second, the function and value of compliance
(A) to maintain sustainable development and build a century-old shop
(2) Prevent risks
(3) Enterprises effectively undertake social and moral responsibilities.
(4) Exempt the company from compliance responsibility.
Five-party division of responsibilities: the division of responsibilities between enterprises and employees, making compliance plans, issuing compliance manuals and signing compliance commitments; Non-unit behavior, non-unit will. Head office and branches, customer due diligence, third-party due diligence, merger compliance due diligence.
Due diligence: investigate whether there are any penalties for illegal crimes in history, and continuously monitor and evaluate compliance. Merger and acquisition compliance, establish compliance mechanism management.
Third, administrative supervision and compliance.
(1) Current progress
SASAC Guidelines for Compliance Management of Central Enterprises (Trial) and Guidelines for Compliance Management of Enterprises' Overseas Operation by Seven Ministries and Commissions.
The introduction of mandatory compliance system (in the securities field), the establishment of compliance management plan to reduce punishment (in the securities field), and the settlement of administrative law enforcement (contracts, contracts).
The State Council's "whistleblower" system (internal reporting of food and drugs): high fines, and high fines will reward whistleblowers.
(2) Four major challenges
1, which is not in line with international standards, and there is no comprehensive compliance incentive mechanism.
2. There are too few cases of compliance system.
3. There is no comprehensive introduction to administrative reconciliation.
4. The establishment of administrative punishment for meeting the conditions of reconciliation.
Fourth, criminal compliance.
Criminal defense needs attention
(a) More and more legal inspectors regard compliance as a defense of "innocence"
(2) There are more and more crimes of dereliction of duty and poor management of enterprises: refusing to fulfill the obligation of information network security management.
Compliance non-prosecution is not established and should be considered as a sentencing circumstance.
Verb (abbreviation of verb) the relationship between compliance and legal profession
(Lawyers, administrative supervisors, prosecutors, judges, supervision departments of the Commission for Discipline Inspection, and legislative departments)
Create a compliance plan and try; Learn due diligence, internal investigation workflow, effective compliance plan and special compliance plan.
The most effective experience of international compliance: create an incentive mechanism, and the compliance supervision of enterprises will shift from the outside to the inside; For third-party supervision, in addition to compliance due diligence, daily hierarchical supervision (hierarchical supervision according to third-party risks).
Administrative supervision: enterprises strive not to hand over public security
Prosecutor: if you don't prosecute according to law, plead guilty and admit punishment, and be lenient in reconciliation.
Court: Obey the plea of innocence and handle it lightly as appropriate.
Discipline inspection and supervision: enterprises establish anti-commercial bribery compliance
Legislative department: follow closely the development of international compliance legislation and introduce compliance as the third-party supervision right of corporate governance in company law; Market supervision legislation, all-round introduction of administrative reconciliation; Criminal law, compliance defense; Criminal procedure law, obey not to prosecute.